For discussion EC(96-97)
on 16 January 1997

ITEM FOR ESTABLISHMENT SUBCOMMITTEE
OF FINANCE COMMITTEE

HEAD 92 - LEGAL DEPARTMENT
Subhead 001 Salaries

Members are invited to recommend to Finance Committee the creation of the following supernumerary post in the Legal Policy Division of the Legal Department with effect from 1 March 19976 for a period of three years -

1 Deputy Principal Crown Counsel (DPCC) (DL2)
($102,900 - $109,250)

PROBLEM

The existing directorate establishment of the Legal Policy Division of the Legal Department (the Department) is inadequate to provide efficient and effective advice on constitutional affairs and the Basic Law.

PROPOSAL

2. The Attorney General (AG) proposes to create one supernumerary post of DPCC (DL2) for a period of three years with effect from 1 March 1997 to head a new Basic Law Unit (BLU) in order to cope effectively with the rising demands for advice on constitutional affairs and the Basic Law.

JUSTIFICATION

3. The Administration needs advice on constitutional affairs both before and after 1997. sovereigntySuch advice is based mainly on the existing constitutional arrangements for matters arising before 1 July 1997, and on the Basic Law for matters arising-on the Basic Law thereafter. Although the Basic Law will not come into operation until 1 July 1997, it is already an important consideration in our work. In making any new legislative proposals, we have to ensure that they are consistent with the Basic Law so that they can transcend the change of sovereignty. This has given rise to an increase in the volume of the Department’s work. Once the Basic Law is in force as the written constitution, we will constantly need expert advice on, for example, the constitutionality of proposed new laws and policies.importance.

4. Counsel holding supernumerary posts created vide paper EC (93-94)53 in the Constitutional and Electoral Affairs Team in the Law Drafting Division and Legal Policy Division of the Department used to provide advice on constitutional affairs. This arrangement however ceased on 1 October 1996 as 30 September 1996. these supernumerary posts (including one Principal Crown Counsel (PCC) and three DPCC) lapsed on that date.the Finance Committee on 14 January 1994 drafting and passage of legislation for the 1995-95 elections and to provide legal advice in relation to constitutional and electoral matters. of the electoral reform work, these supernumerary posts lapsed on 1 October 1996. This has necessitated a redistribution of the advisory work on constitutional affairs.

5. At present, various counsel of the General Advisory and China Law Units of the Legal Policy Division give advice on the Basic Law on an ad hoc basis; but all these officers already carry full workload in their existing areas of responsibility. The greater part of the additional burden falls on a DPCC who formerly held one of the supernumerary posts in the then Constitutional and Electoral Affairs Team and who now heads the General Advisory Unit of the Legal Policy Division. This arrangement is clearly far from satisfactory since it seriously diminishes the Department’s capacity to discharge the full range of its responsibilities in the Legal Policy area, and more especially, its ability to provide high level legal advice on matters of vital importance affecting the Government of Hong Kong in the periods immediately before and after the transfer of sovereignty.

6. This unsatisfactory situation is likely to persist in the foreseeable future noting the rapidly growing Division give advice on the Basic Law on an ad hoc basis. The demand for advice on the Basic Law in recent years, as follows -

Year

No. of advices on the Basic Law

1994

1995

1996 (up to end-November)

1

5

24

7. Also on an ad hoc basis, the China Law Unit has conducted, either jointly with Civil Service Training & Development Institute or on its own, 26 half-day seminars on the Basic Law for civil servants between the period September 1995 to November 1996. There is a continuing strong demand for such seminars over the next few years.

8 As the transfer of sovereignty approaches, such ad hoc arrangements will no longer be acceptable and a dedicated unit headed by a DPCC is required. The holder of the post will provide specialised advice on the Basic Law both to the Administration and other parts of the Department. Counsel in the Law Drafting Division working on the adaptation and localisation of laws or new legislation will particularly benefit from this advice since the adaptation of laws programme involves making proposals for the amendment of Hong Kong Ordinances and subsidiary legislation in order to ensure that they will not contravene the Basic Law. 9. The proposal to create one permanent DPCC post in the BLU was considered by members at the meeting of the Establishment Subcommittee meeting on 14 June 1996 (paper EC(96-97)22). Members expressed reservations about the creation of a DPCC on a permanent basis given the apparently temporary nature of the work. Though we do not envisage the increased requirement for advice on the Basic Law to be temporary, having considered Members’ views, we consider it nonetheless prudent to create a to create a DPCC post on a supernumerary basis first and then monitor the demand for his service and ascertain if the workload justifies a permanent post. The main duties and responsibilities of the proposed DPCC post are at Enclosure 1 and the proposed organisation chart of the Legal Policy Division is at Enclosure 2.

10. The duration of the proposed supernumerary post is three years because the Attorney General expects that questions of interpretation and application of the Basic Law will loom large in the early years of the Hong Kong Special Administrative Regioninauguration. Long and complicated litigation involving Basic Law issues are also expected to arise in the next few years following the transfer of sovereignty. In addition, to enable it to continue to render quality legal advice on the Basic Law to the Government, the Department needs to develop and maintain specialist expertise in this area of the lawwithin the Department able to deploy it, is essential. To have a staffing complement for less than three years cannot realistically and effectively allow for the proper nurturing of expertise and experienceof shorter duration than three years.

FINANCIAL IMPLICATIONS

11. The additional notional annual salary cost of this proposal at MID-POINT is $1,273,200.

The full annual average staff cost of the proposal, including salary and staff on-cost, is $2,309,016.

12. The proposed DPCC post will be supported by one Senior Crown Counsel and one Personal Secretary I. The Attorney General will meet the need for a Senior Crown Counsel in the BLU by redeployment from within the Department. Therefore, the only additional non-directorate post necessitated by the proposal is addition, this proposal will necessitate the creation of one Personal Secretary I post for three years at a notional annual mid-point salary of $258,300 and a full annual average staff cost of $406,344.post at a notional annual mid-point salary cost of $1,127,520 and a full annual average staff cost of $2,043,288 for three years.

13. We have included sufficient provision in the Estimates for 1996-97 and the draft Estimates for 1997-98 to meet the cost of this proposal.

CIVIL SERVICE BRANCH COMMENTS

14. Having regard to the need for advice on the Basic Law, the Civil Service Branch considers it justified to create the supernumerary post. The grading and ranking of the post are appropriate.

RECOMMENDATION OF THE STANDING COMMITTEE ON DIRECTORATE SALARIES AND CONDITIONS OF SERVICE

15. If Members support and the Finance Committee approves the proposal, we will report the creation to the Standing Committee on Directorate Salaries and Conditions of Service in accordance with the agreed procedures.

Legal Department
January 1997

(KK147)

Enclosure 1

Deputy Principal Crown Counsel (DL2) (Supernumerary)

Main duties and responsibilities

Responsible to the Deputy Solicitor General (DL3) of the Legal Policy Division for the following duties -

  1. directing and supervising the day-to-day work of the Basic Law Unit;
  2. providing directorate support to the AG and other departments on Basic Law and other constitutional issues;
  3. advising on public law litigation where appropriate; and
  4. performing such other duties as may be assigned from time to time by the Deputy Solicitor General.

Checklist for ESC Submissions

  1. Necessity to go to the ESC

    ESC/FC’s endorsement is necessary for the creation of supernumerary directorate post of three years’ duration.

  2. Authority & Funding

    A successful bid in the 1995 Resources Allocation Exercise (for a permanent DPCC post). Sufficient provision has already been included in the 1996-97 Approved Estimates and the baseline ofgot 1997-98 of the Legal Department.

    Funding

    Sufficient provision has already been included in the 1996-97 Approved Estimates and baseline of Legal Department for 1997-98.

  3. Political assessment

    LegCo members may use the occasion to ask probing questions about operational matters.

  4. Lobbying requirement

    AG will lobby selected ESC members before ESC meeting.

  5. Fallback option

    As a fallback, AG would withdraw, revise and re-submit the paper at a later meeting.

  6. Attendance at the ESC meeting
    1. Mr Stephen Kai-yi Wong, Deputy Solicitor General (Acting); and
    2. Mr Peter H K Cheung, Chambers Manager

  7. Special consideration

Nil.

(KK147)

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