EC(97-98) -
For discussion
on 4 February 1998


ITEM FOR ESTABLISHMENT SUBCOMMITTEE OF
FINANCE COMMITTEE

HEAD 92 - DEPARTMENT OF JUSTICE
Subhead 001 Salaries

Members are invited to recommend to Finance Committee the creation of the following permanent post in the Law Drafting Division of the Department of Justice -

1 Deputy Principal Government Counsel (DPGC)

(DL2) ($110,000 - $116,800)

PROBLEM

The Law Drafting Division of the Department of Justice requires additional support at the Deputy Principal Government Counsel (DPGC) level to cope with the increasing workload arising from the increase in volume and complexity of bilingual legislation.

PROPOSAL

2. The Secretary for Justice (SJ) proposes to create one permanent post of DPGC (DL2) in the Bilingual Drafting Unit (BDU) (formerly known as Chinese Drafting and Translation Unit) of the Law Drafting Division to draft the more complex bilingual legislation and to supervise the drafting work of non-directorate draftsmen of the Unit.

JUSTIFICATION

3. We have been implementing the Bilingual Legislation Programme since 1987. The Programme requires that all new legislation are drafted in both English and Chinese. The Programme, now in full implementation, has increased substantially the work of the Law Drafting Division. Consequently, the Division has temporarily restructured the former Chinese Drafting and Translation Unit into a new three-team Unit entitled the BDU. The BDU currently has an establishment of three DPGC (one of whom being temporarily redeployed from the English Drafting Unit (EDU) from 1 July 1997), 11 Senior Government Counsel, nine Government Counsel and 23 Law Translation Officers (LTOs). We set out at Enclosure 1 the existing organisation of the Law Drafting Division.

Increase in the volume and complexity of bilingual legislation

4. The volume of bilingual legislation produced by the Division has increased substantially in the past few years. To illustrate, the number of pages of bills and subsidiary legislation produced has increased from 814 pages in 1992 to 6 318 pages in the first 11 months of 1997. In addition to bills and subsidiary legislation, the volume of committee stage amendments (CSAs) has also increased drastically since 1992, from 184 pages in 1992 to 1 946 pages in the first 11 months of 1997. We set out at Enclosure 2 the relevant statistics.

5. Volume aside, the number of lengthy and complex bills drafted has also increased significantly. The introduction of composite bills dealing with a number of matters e.g. the Law Reform (Miscellaneous Provisions and Minor Amendments) Bill 1996, further increased the difficulties and efforts required in producing the right drafts. Such bills touch upon different areas and require more drafting input. We expect that with the establishment of the Hong Kong Special Administrative Region (HKSAR), the demand for drafting of complex legislation will continue to increase. Examples include the mutual legal assistance scheme between other parts of the Mainland and the HKSAR, land supplies and compulsory buy-outs and large scale transport and other infrastructure projects etc., all these will require complex legislation. The continued socio-economic development of the HKSAR on the basis of a sophisticated legal framework will also necessitate the production of more and more complex legislation. For example, as part of the efforts to maintain the HKSAR's status as an international financial centre, we are drafting a 400 page Securities and Futures Bill to rationalise legislation in this field. The related subsidiary legislation will probably exceed 1 000 pages.

6. The DPGC in the BDU are responsible for drafting the more complicated legislation themselves. Very often, they have to draft long and complex legislation within an extremely short period of time in order to tackle political and social issues promptly. Tight schedules normally require the service of a senior draftsman in the BDU who will be responsible for producing both the English and Chinese texts of the draft legislation.

The need for effective management of counsel and LTO in the BDU

7. Clearing draft Chinese legislation prepared by non-directorate professional officers is an important part of the DPGC's work in the BDU and is the most effective method by which the less experienced draftsmen and LTO are trained. It is also a crucial component of the quality control mechanism of the Division. All draft legislation have to be vetted and cleared by a DPGC one or more times before it takes the final shape. With the substantial increases in workload, we would require three DPGC in the BDU to share all the necessary vetting work, in order to provide the necessary guidance and training and not to compromise the quality of the draft legislation. Each DPGC will have to supervise about 14 to 15 professional staff, of whom six to seven are counsel.

Expanded scope of work at DPGC level in BDU

8. In the past, although we have produced legislation bilingually, we usually drafted them first in English and then "translated" them into Chinese only when the English text reached a rather definitive shape. Due to the various constraints such as limited manpower and extremely tight legislative time-tables, we used to vet the Chinese drafts only when they were reaching the final version. The vetting also focused on ensuring that the Chinese draft corresponded to the English. Although such practice was sufficient to cope with the situation in the past, it will have to change now with legislative bilingualism in full swing. The DPGC will have to clear Chinese drafts from a drafting point of view, and also at an earlier stage of drafting.

9. Previously we have released draft legislation for consultation in English only. With legislative bilingualism in full swing, this no longer meets the need of the community. There are also increasing demands for us to issue bilingual drafts at more or less the same time, if not simultaneously. One recent example is the Electoral Affairs Commission which has requested the production of bilingual drafts. Earlier and increased involvement of a DPGC in the BDU in clearing Chinese drafts is thus necessary.

10. There is a clear trend that the Administration has to put in more efforts in steering bills through the committee stage to enactment. To give some concrete examples, the Bills Committee for the Estate Agents Bill met over 30 times and that for the Legal Services Legislation (Miscellaneous Amendments) Bill 1996, 20 times. The recent episode in respect of the Legislative Council Bill is another example. As a consequence, the demand for professional drafting and advisory support from legislative counsel of both the English and Chinese drafts has grown substantially. Apart from drafting bills, draftsmen have to attend meetings, participate in pre-meeting and post-meeting discussions, draft committee stage amendments and attend drafting conferences, consider comments on and assist in the preparation of papers including speeches, Legislative Council briefs, written representations and minutes.

11. The BDU has taken up many assignments in relation to the promotion and development of bilingual laws, and has often been consulted as experts in this area. For example, the BDU is involved in projects to promote the use of Chinese in courts and within the Department of Justice, seminars on bilingual laws and lectures of Chinese for lawyers. The Judiciary also consults the BDU on Chinese legal terms and the preparation of their glossary. The BDU assists the Law Reform Commission by vetting the Chinese version of a voluminous consultation paper. It regularly contributes to journals and newspapers on bilingualism in law. Holders of the DPGC posts in the BDU, who have the most experience and knowledge in these areas have undertaken such work.

Need for Permanent DPGC Post

12. With the substantial increase in workload arising from the increase in volume and complexity of work, the need for effective management of the draftsmen and expanded scope of the work of BDU, we consider it necessary to create an additional DPGC to cope with the tasks and to maintain and improve the quality of Chinese legislation. This is of utmost importance because any ambiguities and discrepancies in meaning between the English and Chinese texts of legislation will result in uncertainties in the law and expensive and unnecessary litigation. This will also greatly help the development of bilingual drafting of the laws, which is a key element in the bilingualism of our legal system.

13. The increase in volume and complexity of work in the Law Drafting Division applies also to the EDU, which therefore cannot continue to deploy the DPGC post to the BDU.

14. We set out at Enclosures 3 and 4 the main duties and responsibilities of the proposed DPGC post and the proposed organisation of the Law Drafting Division respectively.

FINANCIAL IMPLICATIONS

15. The additional notional annual salary cost of this proposal at MID-POINT is -

$

No. of Posts

New Permanent Post

1,360,800

1

16. The full annual average staff cost of the proposal, including salary and staff on-cost, is $2,470,644.

17. This proposal will not necessitate the creation of non-directorate posts.

18. We have included sufficient provision in the 1997-98 Estimates to meet the cost of this proposal.

BACKGROUND

19. The Law Drafting Division comprises the EDU, the BDU, the Electoral Legislation Unit, the Law Revision Unit and the Administration Unit. The Division is responsible for drafting all legislation of the HKSAR in both English and Chinese, providing comprehensive legal advice on the planning of legislative proposals and vetting all subsidiary legislation produced by statutory bodies such as the Provisional Regional and Urban Councils. It is also responsible for developing the database of the Laws of the HKSAR and producing the Loose-Leaf Edition of the Laws of the HKSAR.

CIVIL SERVICE BUREAU COMMENTS

20. Having regard to the increasing workload arising from the increase in volume and complexity of bilingual legislation, the Civil Service Bureau supports the creation of the proposed permanent directorate post in the Bilingual Drafting Unit of the Law Drafting Division. The grading and ranking of the proposed post are considered appropriate.

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

21. The Standing Committee on Directorate Salaries and Conditions of Service has advised that the grading proposed for the post would be appropriate if the post were to be created.


Department of Justice
January 1998

Enclosure 2 to EC(97-98)

Volume of bilingual legislation prepared since 1992

Year

Pages of Bills

Pages of

Subsidiary Legislation

Total

1992

722

92

814

1993

906

476

1382

1994

1738

812

2550

1995

2054

1502

3556

1996

3038

1636

4674

1997

(Jan - Nov)

2612

3706

6318


Volume of committee stage amendments prepared since 1992

Year

Pages of committee

stage amendments

92

184

93

160

94

260

95

670

96

344

97

(Jan - Nov)

1946

Enclosure 3 to EC(97-98)

Main Duties and Responsibilities of
Deputy Principal Government Counsel (DL 2)
(Bilingual Drafting)

Law Drafting Division

Responsible to the Law Draftsman, through the Deputy Law Draftsman (Bilingual Drafting and Administration) and Deputy Law Draftsman (Legislation), for -

  1. the vetting of Chinese texts of ordinances and subsidiary legislation prepared by junior counsel and Law Translation Officers;

  2. co-ordinating the work of counsel and Law Translation Officers engaged in drafting Chinese texts of ordinances and subsidiary legislation;

  3. drafting the more complex and/or controversial Government legislation;

  4. advising the Administration on legislative proposals and assisting in preparing Executive Council Memoranda dealing with proposed legislation;

  5. providing professional service in relation to proposed legislation during the legislative process, including attending meetings of the Executive Council and the Legislative Council (including its committees), drafting committee stage amendments and giving incidental legal advice;

  6. preparing legal reports for the Standing Committee of the National People's Congress in respect of the enacted ordinances and checking press releases for new legislation;

  7. supervising the work of, and providing training to, junior counsel, Law Translation Officers and support staff; and

  8. overseeing the compilation and publication of a bilingual legal glossary and related materials.


Checklist for ESC Submission

  1. Necessity to go to the ESC

    ESC/FC's endorsement is necessary for the creation of permanent directorate post.

  2. Authority

    Secretary for Justice considers it necessary to create the post.

  3. Funding

    The proposed post was supported in the 1994 RAE.

  4. Political Assessment

    The proposal is not politically controversial.

  5. Consultation with Provisional LegCo Panel

    The Provisional LegCo Panel on Administration of Justice and Legal Services will be briefed at its meeting on 12 January 1998.

  6. Lobbying Requirement

    We will lobby selected members of the Liberal Party, Democratic Alliance for the Betterment of Hong Kong, Hong Kong Progressive Alliance, and Association for Democracy and People's Livelihood and the legally qualified members of ESC and AJLS Panel.

  7. Fallback

    To withdraw, revise and re-submit the paper at a later stage.

  8. Attendance at ESC Meeting

    Mr Tony Yen, Law Draftsman

    Mr Stephen Lam, Director of Administration and Development

    Mr Peter H K Cheung, Deputy Director (Administration)

    Mr Gilbert Mo, Acting Deputy Law Draftsman (Bilingual Drafting and Administration)

  9. Special Consideration

    With the substantial increase in workload in the Law Drafting Division, it is necessary to create the post as early as possible.