PLC Paper No. CB(1)33/97-98
Ref.: CB1/BC/1/97

Report of the Bills Committee on
Legislative Provisions (Suspension of Operation) Bill 1997

Purpose

This paper reports on the deliberations of the Bills Committee on the Legislative Provisions (Suspension of Operation) Bill 1997.

The Bill

2. The Bill seeks to suspend the operation of the following enactments until such dates to be appointed by the relevant policy Secretaries:

1. Employment (Amendment) (No. 4) Ordinance 1997;
2. Occupational Deafness (Compensation) (Amendment) Ordinance 1997;
3. Employment (Amendment) (No. 5) Ordinance 1997;
4. Employee Rights to Representation, Consultation and Collective Bargaining Ordinance;
5. Trade Unions (Amendment) (No. 2) Ordinance 1997;
6. Protection of the Harbour Ordinance; and
7. Hong Kong Bill of Rights (Amendment) Ordinance 1997.

Background

3. The seven Ordinances in question were introduced by Members of the previous Legislative Council and passed at the last sitting of the Council in June 1997. Three of the seven Ordinances, namely the Employment (Amendment) (No. 4) Ordinance 1997, the Trade Unions (Amendment) (No. 2) Ordinance 1997 and the Protection of the Harbour Ordinance, have been scrutinised by a Bills Committee.

4. A summary of the major provisions of the seven Ordinances is at Appendix I. According to the Administration, most of the legislative changes have been hastily passed and their serious adverse impact on Government policies and operations has yet to be fully analysed. As all the Ordinances contain no commencement clauses, they came into operation when they were passed. The Administration therefore introduced the present Bill into the Provisional Legislative Council (PLC) on 9 July 1997 seeking to uspend�the operation of these Ordinances until their impact has been thoroughly analysed. The Administration also requests urgent passage of the Bill so as to avoid the complications brought about by the changes effected by the Ordinances.

The Bills Committee

5. At the meeting of the House Committee on 11 July 1997, members decided to set up a Bills Committee to study the Bill. Under the chairmanship of Hon IP Kwok-him, the Bills Committee has held two meetings with the Administration and met with the Society for Protection of the Harbour upon the latter鷔 request. A membership list of the Bills Committee is at Appendix II.

Deliberations of the Bills Committee

6. Members have examined the principles and merits of the Bill, as well as the implications of the seven Ordinances which form the subject of the present Bill. Their major areas of concerns are summarised in the following paragraphs.

The form of the Bill

7. Members question the appropriateness of the Administration introduction of a single Bill to deal with seven Ordinances on different subjects. As the background and areas of concern of each Ordinance are not the same, some members hold the view that the Administration should introduce separate bills to facilitate members to consider each case separately on its own merits.

8. In response, the Administration stresses the need to suspend the operation of the seven Ordinances and that the present legislative approach is appropriate and viable. It also advises that should members decide not to support the suspension of some of the seven Ordinances, they are at liberty to move amendments to the relevant clauses in the Bill in accordance with the rules of Procedure.

9. Some members also request the Administration to stipulate in the Bill the proposed suspension period of the seven Ordinances. The Administration assures members that it will complete the review of the seven Ordinances expeditiously and report its recommendations on the way forward to the PLC not later than the end of September 1997. To address members�concerns, the Administration subsequently agrees to provide in the Bill that the seven Ordinances may only be suspended up to 31 October 1997 and that any further extension of the suspension period has to be approved by the PLC.

10. The Administration also clarifies that the Bill, if enacted, will not have any retrospective effect on the operation of the seven Ordinances in question.

The five labour-related Ordinances

11. One of the main objections raised by the Administration is that the five Ordinances are not based on any tripartite consensus reached by employers, employees and the Government at the Labour Advisory Board (LAB). The Administration has also informed members that at a special meeting to consider the various pieces of legislation in their draft form in May 1997, the LAB could not support any of them and in some cases, required more time to study the provisions.

12. As detailed in Appendix I, the Administration holds the view that the far-reaching implications of the Ordinances, such as the Employee Rights to Representation, Consultation and Collective Bargaining Ordinance, have not been adequately assessed. It also refers to the confusion likely to be caused by the Employment (Amendment) (No. 4) Ordinance on anti-union discrimination and the Employment (Amendment) (No. 5) Ordinance 1997 which appoints 1 May as a statutory holiday. The Administration also highlights the enforcement difficulties arising from the Occupational Deafness (Compensation) (Amendment) Ordinance 1997.

13. The Bills Committee does not concur entirely with the Administration justifications for suspending the Ordinances. Some members have also exchanged views with the Administration on the respective roles of the LAB and the legislature in the introduction of legislative reforms.

14. Whilst most members of the commercial/industrial sectors have no strong objection to the proposed suspension pending further study and consultation, other members, notably those representing the labour sector, express serious reservations. They point out that the Employment (Amendment) (No. 4) Ordinance 1997 and the Trade Unions (Amendment) (No. 2) Ordinance 1997 have each been scrutinised by a Bills Committee prior to their passage while major issues of the other pieces of legislation have been considered at the former LegCo Panel on Manpower. In connection with the Employment (Amendment)(No.5) Ordinance 1997, members note that the Holidays (1997 and 1998) Ordinance passed by the PLC earlier on does not include 1 May as a holiday for 1998. Since the special Working Group of the Government has completed a comprehensive review on the Occupational Deafness (Compensation) Scheme and is about to propose a number of improvements, some members are not convinced of the need to suspend the Occupational Deafness (Compensation) (Amendment) Ordinance 1997 which seeks to relax the eligibility criteria for compensation.

15. After deliberations, the majority of members present at the discussion agree that implementation of the Occupational Deafness (Compensation) (Amendment) Ordinance 1997 should not be suspended. The Bills Committee will move an amendment at the Committee stage to this effect. In view of the contentious issues raised in relation to the Employee Rights to Representation, Consultation and Collective Bargaining Ordinance, members in general agree to its proposed suspension to facilitate further examination by the Administration in consultation with the LAB. The Committee however has not taken a common position on the proposed suspension of the other three Ordinances. Nevertheless, it considers that the Employment (Amendment) (No. 4) and (No. 5) Ordinances 1997 should not be included under one clause in the Bill. The Administration will introduce the necessary amendment so that the two Ordinances can be dealt with separately at the Committee stage.

Protection of the Harbour Ordinance

16. The Bills Committee notes the objection of the Society for Protection of the Harbour to the proposed suspension of the Ordinance, as well as the Administration grave concerns about uncertainties caused by the declarative principle of presumption against reclamation in the central harbour and the public law duty on public officers and public bodies to have regard to the principle for guidance in the exercise of their powers.

17. In examining the queries raised by the Administration, members have taken note of the advice of the Committee legal adviser that the presumption, though unusual in legislation, was legally effective and that in litigations, the court will take into consideration the legislative intent when interpreting relevant provisions in specific cases.

18. In order to gauge the impact of the Ordinance, members have requested for further information on the extent to which Government operations are/will be affected. In response, the Administration highlights four major reclamation projects in the central harbour currently under planning which may be subject to serious uncertainties and disruptions should the decision to undertake relcamations be challenged in court.

19. The Bills Committee has not taken a position on the proposed suspension. Nevertheless, to address some members�concerns, the Administration has confirmed that it will not commence any major reclamation works even if the proposed suspension is passed.

Hong Kong Bill of Rights (Amendment) Ordinance 1997

20. The Administration considers that the Amendment Ordinance has caused uncertainty and confusion over the interpretation of sections 3 and 7 of the Hong Kong Bill of Rights Ordinance (BORO) and the amending provisions may have the effect of making BORO cases legally actionable between private citizens. The Administration has also advised that the decision of the Standing Committee of the National People Congress not to adopt section 3 of the pre-existing Ordinance may render the newly added section 3(3) and (4) meaningless. In this connection, the Bills Committee has noted the legal advice that whether the newly added section 3(3) will give rise to a cause for action between private citizens is a matter for the court to decide in relevant cases.

21. Some members have suggested that if it is not the Administration policy and legislative intent to provide for inter-citizen actions under the BORO, then, the Administration should consider repealing the Amendment Ordinance. In response, the Administration confirms its intention to analyse the legal issues thoroughly before deciding on the way forward. Members have not taken a position on the proposed suspension of this Ordinance.

Committee stage amendments

22. As at 14 July 1997, the Bills Committee and the Administration will move Committee stage amendments (CSAs) as detailed in paragraphs 9 and 15. The CSAs are being circulated to members separately.

Consultation with House Committee

23. The Bills Committee made a verbal report to the House Committee on 15 July 1997 and sought the latter support for the Bill to resume Second Reading debate on 16 July 1997.

Provisional Legislative Council Secretariat
15 July 1997