Legislative Council
LC Paper No. CB(2) 2107/98-99
(These minutes have been seen
by the Administration)
Ref : CB2/BC/5/98, CB2/BC/6/98
Bills Committee on
Adaptation of Laws Bill 1998
and
Bills Committee on
Adaptation of Laws (No.2) Bill 1998
Minutes of Joint meeting
held on Friday, 26 February 1999 at 8:30 am
in Conference Room A of the Legislative Council Building
Members present:
Bills Committee on Adaptation of Laws Bill 1998
* Hon Andrew WONG Wang-fat, JP (Chairman)
*Hon Margaret NG
Hon Ronald ARCULLI, JP
*Hon Jasper TSANG Yok-sing, JP
Bills Committee on Adaptation of Laws (No.2) Bill 1998
Hon Mrs Miriam LAU Kin-yee, JP
Members absent:
Bills Committee on Adaptation of Laws Bill 1998
Hon Kenneth TING Woo-chou, JP
*Hon Cyd HO Sau-lan
*Hon James TO Kun-sun
Hon Christine LOH
*Hon Ambrose LAU Hon-chuen, JP
(* also a members of the Bills Committee on Adaptation of Laws (No.2) Bill 1998)
Public Officers attending:
- Mrs Sarah KWOK
- Principal Assistant Secretary for Security B
- Mr Philip CHAN
- Principal Assistant Secretary for Security E
- Ms Mimi LEE
- Principal Assistant Secretary for Security (Narcotics)
- Mr Tony YEN
- Law Draftsman
- Mr Peter WONG
- Senior Assistant Solicitor General
- Mr SUEN Wai-chung
- Senior Assistant Law Draftsman
- Miss Betty CHEUNG
- Senior Government Counsel
- Mr John WONG
- Senior Government Counsel
Clerk in attendance:
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance:
- Miss Betty MA
- Senior Assistant Secretary (2) 1
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mr KAU Kin-wah
- Assistant Legal Adviser 6
I. Meeting with the Administration
(LC Paper No. CB(2) 1340/98-99(01))
At the invitation of the Chairman, Law Draftsman (LD) informed members of the Administration's response to issues raised in relation to Article 56 of the Basic Law. He said that prior to the reunification, there was no practice of consulting the Executive Council (ExCo) in respect of subsidiary legislation made by the Governor. The then Governor was empowered to do so under the Royal Instructions and the Letters Patent. Unlike the Letters Patent, Article 56 set out in very clear terms the constitutional obligation of the Chief Executive (CE) to consult ExCo when making subordinate legislation. As a result of this constitutional directive, where the then Governor was previously given power under any ordinance to make subsidiary legislation, that power would need to be exercised by the CE in Council.
2. LD said that in the context of the adaptation of laws exercise, the Administration's original approach was to identify every provision which conferred a legislative function on the then Governor and to replace the reference to "Governor" by "Chief Executive in Council" so as to reflect the constitutional obligation under Article 56. This had the advantage of setting out clear and ready guidance in legislation for the exercise of statutory powers. However, the classification as to whether an instrument had "legislative effect" and hence fell within the scope of subordinate legislation had attracted much debate. The Administration therefore proposed to adopt a more mechanical approach in adaptations whereby all references to "Governor", in respect of making subordinate legislation and issuing administrative instruments, would be adapted to "Chief Executive". Where consultation had taken place, it would be reflected in the heading of the subordinate legislation. The adoption of such an approach would help to avoid further delay in the enactment of the adaptation of laws bills and inconclusive arguments about the designation of many instruments as being subordinate legislation or otherwise.
3. LD further said that there were valid legal and practical reasons for arriving at the above proposal. The CE's obligation to consult ExCo when making subordinate legislation would be unaffected. Any non-compliance with the requirement to consult ExCo when making subordinate legislation by CE might be subject to judicial review.
4. Lastly, LD said that to address members" concern about whether an instrument fell within the scope of subordinate legislation, the Administration would, in drafting legislation in future, state expressly therein whether or not the instrument was a piece of subsidiary legislation within the meaning of section 34 of Cap.1.
5. Miss Margaret NG said that the Administration's explanation and the new approach was acceptable. The new approach would avoid the need to decide in the context of adaptation the classification of a particular instrument as subordinate legislation or otherwise.
6. Mr TSANG Yok-sing and Mr Ronald ARCULLI considered the Administration's new approach acceptable. Mr ARCULLI echoed LD's view that any non-compliance by CE with his constitutional obligation, CE might be subject to judicial review.
7. As to whether an instrument fell within the scope of subordinate legislation, the Chairman was of the view that the matter would not be followed up by the Bills Committees on adaptation of laws bills.
| 8. LD said that the Administration would move Committee Stage amendments to all adaptation of laws bills which contained amendments replacing "Governor" by "Chief Executive in Council" to effect the new approach, i.e. adapting reference to "Governor" to "Chief Executive". | Adm
|
9. The Chairman said that he would make a verbal report to the House Committee on 26 February 1999 on the deliberations of the two Bills Committee at this joint meeting.
10. There being no other business, the meeting ended at 8:45 am.
Legislative Council Secretariat
13 May 1999
