Legislative Council

LC Paper No. CB(2)2335/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/BC/19/98

Bills Committee on
Interpretation and General Clauses (Amendment) Bill 1999

Minutes of Meeting
held on Monday, 17 May 1999 at 4:30 pm
in Conference Room B of the Legislative Council Building

Members present :

Hon Albert HO Chun-yan (Chairman)
Hon Margaret NG
Hon HUI Cheung-ching
Hon Jasper TSANG Yok-sing, JP

Members absent :

Hon Martin LEE Chu-ming, SC, JP
Hon Ronald ARCULLI, JP

Public Officers attending :

Mr Michael SCOTT
Deputy Principal Government Counsel (Legal Policy)

Mr Geoffrey FOX
Deputy Principal Government Counsel (Law Drafting)

Mr Sunny CHAN
Senior Government Counsel (Law Drafting)

Mr Thomas LEUNG
Senior Government Counsel
(Law Reform Commission)

Clerk in attendance :

Mrs Sharon TONG
Chief Assistant Secretary (2)1

Staff in attendance :

Mr KAU Kin-wah
Assistant Legal Adviser 6

Mr Raymond LAM
Senior Assistant Secretary (2)5


Members noted the resignation of Miss Emily LAU from the Bills Committee which took effect from 5 May 1999.

I. Confirmation of minutes of meeting held on 31 March 1999
(LC Paper No. CB(2) 1829/98-99)

2. The minutes were confirmed.

II. Meeting with representatives from the Hong Kong Bar Association and the Administration
(LC Paper Nos. CB(2)1828/98-99(01), CB(2)1828/98-99(02), CB(2)1828/98-99(03) and CB(2)1873/98-99(01))

Views of Hong Kong Bar Association (Bar)

3. At the invitation of the Chairman, Mr Philip DYKES, representative of the Bar presented the submission of the Bar (LC Paper No. CB(2) 1828/98-99(02)) and said that the main concern was about the timing for introduction of the Interpretation and General Clauses (Amendment) Bill 1999 (the Bill). The Bar questioned the suitability of adapting the principles in Pepper v Hart (1992) 3 WLR 1032 to a legislature in which there was no majority political party and the Government was executive-led. The Bar considered it more appropriate to wait a few years and see how the new constitutional arrangements which arose after 1 July 1997 worked before the subject was dealt with. The Bar was also concerned that in connection with the recent cases concerning the right of abode in Hong Kong under Article 24 of the Basic Law (ROA cases), there was a view that statements made by bodies involved in the drafting of the Basic Law after its enactment were relevant to the interpretation of the Basic Law. If materials coming into existence after the enactment of the Basic Law form part of the legislative history, ambiguities might arise with Ordinances enacted to give effect to a provision of the Basic Law. An example of such an Ordinance was the Immigration (Amendment) (No. 3) Ordinance 1997. Another concern of the Bar was the possibility of statements made by the promoters of a bill in second reading debates being drafted with an intention for later use. Apart from the concerns stated, the Bar did not have any particular views on the Bill.

Rules for the interpretation of Ordinances and the Basic Law

4. The Chairman drew members' attention that according to the LegCo Brief on the Bill, the proposed amendments would only apply to Ordinances, not to the Basic Law.

5. Miss Margaret NG questioned why there were different rules for the interpretation of Ordinances and the Basic Law. She said that the Bill arose from Pepper v Hart, which was frequently cited in the court hearings on ROA cases. The same was also cited in the context of whether an agreement made by the Sino-British Joint Liaison Group in 1993 could be used to interpret "born of" and "children". Referring to the comment of the Administration's letter dated 5 May 1999 that it could not be seen how any document produced after the enactment of a provision could carry any weight to assist in the ascertainment of the meaning of the provision, she opined that the comment was not specific to any Ordinance and therefore should be applicable to the construction of any statute. The Basic Law was a statute in the sense that it was a national law of the People's Republic of China. She would be surprised if the principles applicable to interpretation of Ordinances were different from those for the interpretation of the Basic Law. It had never been set out in any statute that the provisions were applicable to an Ordinance but not to the Basic Law. To her knowledge, no distinction was made by legal practitioners and judges when instruments were construed before the court. The Chairman added that it was pertinent to know the rules applicable to the interpretation of the Basic Law, and to see how they would be different from the rules for the interpretation of an Ordinance. He considered it unacceptable to have different sets of rules for the interpretation of the Basic Law and Ordinances enacted in Hong Kong.

6. Deputy Principal Government Counsel (Law Drafting) (DPGC(LD)) said that the Bill sought to amend the Interpretation and General Clauses Ordinance (Cap. 1), which was applicable to all Ordinances and supplementary Ordinances enacted by the legislature of Hong Kong. Cap. 1 only applied to the interpretation of Ordinances. The Basic Law was not an Ordinance. The question of whether the principles for the interpretation of Ordinances were also applicable to the interpretation of the Basic Law was irrelevant to the Bill. He was not in a position to give any comment until he had carried out a research on the issue. He added that the Bill would not affect the rules applicable to the interpretation of the Basic Law. Deputy Principal Government Counsel (Legal Policy) (DPGC(LP)) said that the Administration had not formed a view on whether the principles for the interpretation of the Basic Law were different from those for the interpretation of Ordinances. Cap. 1 was for the interpretation of Ordinances. It was not meant for the interpretation of the Basic Law. Miss Margaret NG disagreed and questioned whether in construing instruments related to the Basic Law before the court, a counsel would be prohibited from referring to Cap. 1.

7. Mr TSANG Yok-sing opined that the rules for the interpretation of Ordinances and the Basic Law might be different. Interpretation of the Basic Law was subject to restrictions within the Basic Law itself. Article 158 of the Basic Law stipulated that in certain cases, the Court of Final Appeal would seek an interpretation of provisions of the Basic Law from the Standing Committee of National People's Congress (SC of NPC). If an article of the Basic Law was referred to SC of NPC for interpretation and a statement was issued by the latter, the statement would be followed in subsequent court cases. This was something which came into existence after the enactment of the Basic Law. The Chairman said that it was a common law principle to interpret a provision in the context of the legislation concerned. Miss Margaret NG said that according to her understanding, an interpretation was either an explanation or a supplementary legislation. Both were additional to the law. Both the court and the SC of NPC were bodies empowered to interpret instruments. SC of NPC was vested with the power to interpret the Basic Law, while the courts were vested with the power to interpret Ordinances.

8. The Chairman referred to the comment in the Administration's paper that the David MA case had made it plain that the common law principles of interpretation would continue to apply under the Basic Law, including in respect of the interpretation of the Basic Law itself. He considered that if common law principles were applicable to the interpretation of the Basic Law, the passage of the Bill, which was applicable to Ordinances only, might increase the court's power to interpret Ordinances and reduce its power to interpret the Basic Law. DPGC(LP) said that the comment in the Administration's paper was made on the basis that both the interpretation of a constitution and an Ordinance were made purposively. Since Cap. 1 only applied to Ordinances, materials listed therein could be cited in the interpretation of an Ordinance. It would not alter any of the principles for the interpretation of the Basic Law. DPGC(LD) supplemented that the Law Reform Commission (LRC) Report was prepared long before the ROA cases arose. The Bill sought to implement almost exactly the recommendations in the LRC Report. On the question of whether common law principles were also applicable to the interpretation of the Basic Law, he was not in a position to comment until he had looked into the issue.

9. Miss Margaret NG commented that the Court of Final Appeal's interpretation of the Basic Law in the ROA cases was not only based on common law principles. The court had distinguished the interpretation of the Basic Law from the rules of interpretation generally applied in interpreting statutes. The Court of Final Appeal had referred to the nature of the Basic Law as that of a constitutional document. The rules of construction required documents to be interpreted taking into consideration principles which pertained to the construction of that sort of document. However, there were limits to what could be used. For example, a document which came into being after the enactment could not possibly be in the minds of the legislature at the time an Ordinance was enacted. The court would take all matters into consideration and therefore the Bill would not result in any savings in litigation costs. With proposed section 19A(7), it was still necessary to apply common law principles in the interpretation of an Ordinance.

10. Mr TSANG Yok-sing said that having regard to Miss Margaret NG's views, he considered that the rules of interpretation of Ordinances and the Basic Law should not be different. There should not be any difficulty in having a common set of rules for the interpretation of the Basic Law and Ordinances enacted in Hong Kong, as long as Article 158 of the Basic Law was adhered to. While SC of NPC was empowered to interpret the Basic Law, it might not adopt the rules of interpretation followed by Hong Kong courts. Although Cap. 1 was not applicable to the Basic Law, provisions in the Basic Law itself were adequate to ensure that the same rules and principles would be applied by the courts in the interpretation of an Ordinance or the Basic Law.

11. Miss Margaret NG said that when SC of NPC interpreted the Basic Law in accordance with Article 158 of the Basic Law, it could not possibly be bound by a statute of Hong Kong. The legal professions did not know what principles were adopted by the SC of NPC when interpreting the Basic Law. Hence, they were concerned that when the interpretation of an article within the autonomy of the Hong Kong Special Administrative Region was referred to SC of NPC, a different set of rules might be applied in interpretation. She said that when a bill was examined, it was usual to examine how it was to be applied. The proposed amendments might appear to be harmless when it was passed. However, they might not be so when applied in debates before the court.

12. DPGC(LD) said that the Bill was only applicable to the interpretation of Ordinances. Material capable of assisting in the interpretation of an Ordinance would have to be material which came into existence before the enactment of the Ordinance. Where an Ordinance was enacted to give effect to a provision in the Basic Law, it might be necessary to interpret the Basic Law, and the principles applicable to the interpretation of the Basic Law would then apply. He said that besides the Basic Law, there might be other material which could also be presented before the court and for which there were some other rules for its interpretation. There might be a legislation in the United Kingdom (UK) which formed the basis of an Ordinance enacted in Hong Kong, and the UK legislation might be subject to different rules of interpretation. It would be necessary to look at the laws applicable to the interpretation of the UK legislation in order to interpret the Ordinance enacted in Hong Kong. This was in no way different from applying the principles for the interpretation of the Basic Law to assist in the interpretation of an Ordinance.

13. The Chairman said that if the legislature was constitutionally competent to enact a provision concerning the rules of interpretation of the Basic Law, proposed section 19A or the entire Cap. 1 could be amended to become binding on the court in the interpretation of the Basic Law.

14. DPGC(LP) said that it would be constitutionally impossible for the Administration or the legislature of Hong Kong to enact an Ordinance which stipulated how the Basic Law should be interpreted. There was no way that an Ordinance could apply to the interpretation of the Basic Law. Even if it was explicitly stated, it would be contrary to both the Basic Law and the common law.

15. Miss Margaret NG said that when examining the Basic Law in the ROA case, the court would have to consider that the legislative process in the Mainland might be very different from the legislative process in Hong Kong. In interpreting any document, the court would take into consideration the nature of that document. Thus, factual background would be taken into consideration. There had never been any truncation between the interpretation of Ordinances and the Basic Law. She was concerned that a truncation might result from the Bill. DPGC(LP) said that there was no provision in Cap. 1 which provided for its application to anything other than an Ordinance. Pepper v Hart was a very long case. The Bill just sought to clarify what was formally unclear in the common law. Documents stated in proposed section 19A(2) would be admissible as material for the interpretation of a provision, resulting in less litigation costs for clients. DPGC(LD) said that the Bill would not result in any truncation. Every provision in Cap. 1 was only applicable to the interpretation of Ordinances. Proposed section 19A was just an additional section in Cap. 1 to assist the interpretation of Ordinances. Proposed section 19A could not be applied to the Basic Law, as Cap. 1 was only applicable to Ordinances. If there was some concern about its effect on the Basic Law, a Committee Stage amendment (CSA) could be made, subject to the agreement of the Department of Justice, to proposed subsection(7) along the line of "the provisions of this section shall be in addition to and not in derogation from the law applicable to the interpretation of the Basic Law.".

Reference to post-enactment material in interpretation

16. Miss Margaret NG said that the scope of proposed section 19A(1) was very wide in that if any material not forming part of the Ordinance was capable of assisting in the ascertainment of the meaning of the provision, consideration might be given to that material to determine the meaning of the provision. There was no limit in respect of time. Proposed section 19A(1) was in the broadest terms and it was not limited by any other subsection.

17. DPGC (LD) said that proposed section 19A(1) was subject to proposed section 19A(7), which stipulated that the provisions of the section would be in addition to and not in derogation from the common law applicable to the interpretation of a provision of an Ordinance. It was therefore not changing the common law in any respect. The proposed amendments would facilitate the presentation of materials to assist in ascertaining the meaning of a provision which was obscure and ambiguous. The application of proposed section 19A(7) would not prohibit the application of other common law principles. Miss Margaret NG opined that the proposed amendments would not really assist in interpretation. It would only add to the common law and make interpretation more difficult. While the proposed subsection had to be read together with the common law applicable to the interpretation of a provision, it was unclear as to what the "common law applicable" was.

18. As regards Miss NG's concern that there was no limit in respect of time in proposed section 19A(1), DPGC(LP) said that it had not been established that reference could be made to post-enactment materials in the course of interpretation of a document. Legislative history referred to matters which occurred before the enactment of an Ordinance. Preparatory materials were materials which came into existence in advance of the enactment of an Ordinance. Thus, document produced after the enactment of a provision would not be extrinsic material that could assist in ascertaining the meaning of the provision. Post-enactment materials related to the Basic Law were not relevant to the interpretation of Ordinances. The Bill would not result in reference by the court in the interpretation of a provision to materials which came into existence after the enactment of the Basic Law. To his knowledge, there was no common law principle that allowed the use of post-enactment material in the interpretation of a provision. No provision in proposed section 19A(1) or (2) would override the meaning of legislative history under the common law. Mr Philip DYKES advised that the only post-enactment material which could be admitted for the interpretation of a provision was contemporary subsidiary legislation. This was admissible under the common law.

19. To address members' concerns, DPGC(LP) advised that a time constraint might be imposed to proposed subsection (1) to set out that it referred to pre-enactment history only and not post-enactment material. DPGC(LD) supplemented that it was always the Administration's intention that material produced after the enactment of an Ordinance would not be admissible as material for the interpretation of a provision. This could be made clear by a CSA to proposed section 19A(1).

20. Assistant Legal Adviser 6 (ALA6) said that restricting the scope of proposed section 19A(1) to pre-enactment materials might result in inconsistency with proposed section 19A(2)(a). DPGC(LD) said that the drafting point would be overcome if the CSA was acceptable to members.

21. ALA6 suggested that members' concern might be allayed if the Administration could provide information on the operation of the Australian legislation regarding the use of extrinsic materials as an aid to statutory interpretation in this regard. DPGC(LD) undertook to examine if information on the Australian experience was available. Adm

Timing for introduction of the Bill

22. On the timing for introduction of the Bill, Mr HUI Cheung-ching pointed out that in its submission, the Bar considered it not a right time to introduce the Bill. The Law Society of Hong Kong took the view that while there did not appear to be any pressing need for the proposed legislation, there appeared to be no valid justification for postponing its passage. He enquired about the Administration's position in respect of the timing for introduction of the Bill.

23. DPGC(LP) responded that the Administration agreed to the views of the Law Society in that if there was a pressing need, the Bill would need to be passed overnight. Thus, there was not a pressing need for the proposed legislation. Nevertheless, LRC concluded that it would be desirable to provide clear legislative guidelines for the use of extrinsic material. The organizations consulted generally considered that there were good reasons for the Bill to be introduced. There did not appear to be valid justification for postponing its introduction.

Issue of whether there was a need for the Bill

24. Miss Margaret NG expressed strong reservation about the need for the Bill. From her experience, she noted that legal practitioners were able to quote experiences in various jurisdictions, reasons, and submissions in debates on questions of construction. With the lengthy provisions in proposed section 19A for the interpretation of statutes, the courts would only spend more time in interpreting the provisions in Cap. 1. She considered that the proposed section would not be of great assistance. She said that the passage of the Bill would mean that the legislature knew better than the court about how to develop the law of construction. The Chairman advised that according to the LegCo Brief and the LRC report, the judicial development in this area was too slow as well as too piecemeal and the Administration therefore intended to consolidate them in a single legislation.

25. Mr Philip DYKES said that while the recommendations in the LRC report were sensible, there was no pressing need for their early introduction. He said that if a body advised that Article 158 of the Basic Law had a certain meaning after the enactment of the Basic Law, the advice would not be admissible under the common law as material for the interpretation of an Ordinance. He was however concerned that the advice might be regarded as legislative history for a subsequent legislation enacted to give effect to a provision of the Basic Law.

26. DPGC(LP) said that the Bill was more than codifying Pepper v Hart. It was actually correcting a flaw in Pepper v Hart, in which the court held that if the minister's second reading speech was clear, the court should follow it. Such ruling had been criticized as a surrender of the court's constitutional function of interpreting legislation. The Bill sought to ensure that the court could refer to second reading speeches as well as other extrinsic materials in determining the true object of the statute concerned. By including legislative history as admissible evidence, a substantial amount of litigation costs would be saved. In no way was the Bill derogating from common law principles. It would put the second reading speech of the Administration in context so that the court would decide whether it should be followed. Hence, there should not be a concern about the planting of self-serving statements in second reading speeches.

27. At the request of the Chairman and Miss Margaret NG, DPGC(LD) agreed to provide written response on the following -

  1. The rules of interpretation of the Basic Law vis-a-vis the rules of interpretation of Ordinances in Hong Kong, and the differences, if any, between the two sets of rules;

  2. The Administration's position on whether the legislature was constitutionally competent to enact a provision concerning the rules of interpretation of the Basic Law; and

  3. The drawbacks of not passing the Bill.

Adm

III. Date of next meeting

28. Members agreed that the next meeting would be held when the Administration's response on the issues raised by members was available.

29. The meeting ended at 6:10 pm.



Legislative Council Secretariat
10 June 1999