Legislative Council
LC Paper No. CB(2) 2725/98-99
(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, 21 June 1999 at 4:30 pm
in Conference Room B of the Legislative Council Building
Members present :
Hon Albert HO Chun-yan (Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon HUI Cheung-ching
Hon Jasper TSANG Yok-sing, 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)
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
I. Confirmation of minutes of meeting held on 17 May 1999
(LC Paper No. CB(2) 2335/98-99)
The minutes were confirmed.
II. Meeting with the Administration
(LC Paper No. CB(2)2270/98-99(01))
Rules of interpretation of the Basic Law (BL)
2. Referring to paragraph 1 of Appendix I to the paper provided by the Administration, which stated that the Basic Law (BL) did not provide rules or guidelines for application in the interpretation of its provisions, Mr HUI Cheung-ching enquired whether the Administration would consider reflecting the problem of lack of rules of interpretation of BL to the Central People's Government or the Standing Committee of the National People's Congress (SC of NPC); and suggesting them to establish an interpretation mechanism.
3. Deputy Principal Government Counsel (Legal Policy) (DPGC(LP)) said that the issue was outside the ambit of the Interpretation and General Clauses (Amendment) Bill 1999 (the Bill). Nevertheless, it would usually be necessary in the interpretation of BL to look at the text, the context and relevant extrinsic material to ascertain the purpose of a provision. The rules of interpretation of BL and of Ordinances were broadly similar in that the text of provisions should be interpreted according to the context and purpose. However, the interpretation of BL provisions relating to matters outside the autonomy of the Hong Kong Special Administrative Region (HKSAR) was subject to Article 158 of BL (BL158). He stressed that the Bill, which was directed at the use of relevant extrinsic material in statutory interpretation when there was ambiguity in the text of an Ordinance, was only applicable to the interpretation of Ordinances, not BL.
Impact of the Bill on the interpretation of BL
4. Mr Ronald ARCULLI questioned the Administration's view that the Bill would not have any impact on the interpretation of BL. Deputy Principal Government Counsel (Law Drafting) (DPGC(LD)) said that if there were concerns about the effect of the Bill on BL, the Administration could move a Committee Stage amendment (CSA) along the line that "no provision in section 19A shall prejudice the operation of the laws applicable to the interpretation of BL".
5. Miss Margaret NG considered that the proposed CSA might be interpreted in two different ways, namely -
- the court was not bound by the materials stated in the proposed section 19A in the interpretation of BL; or
- the court was not allowed to use the materials stated in the proposed section in the interpretation of BL.
If the latter was to be adopted, different sets of rules would be created for the interpretation of BL and Ordinances. The creation of a two-tier interpretation system by legislation was undesirable. This would hinder the development of the rules of interpretation of BL.
6. DPGC(LD) responded that the proposed CSA only sought to provide that proposed section 19A would not apply to the interpretation of BL. DPGC(LP) reiterated that the Interpretation and General Clauses Ordinance (Cap. 1) could not apply to the interpretation of BL. This was no different from the situation before 1 July 1997, when Cap. 1 was not applicable to the interpretation of the Letters Patent, the mini-constitution of Hong Kong at that time. The proposed CSA would not create a two-tier interpretation system. It only sought to provide assistance to the court.
7. The Chairman considered that although the legislature of HKSAR could not pass a piece of legislation to bind SC of NPC on the interpretation of BL, it might be possible to enact a provision, such as by extending the coverage of the Bill, to bind the courts on the interpretation of BL.
Issue of whether the legislature was constitutionally competent to enact a provision concerning the rules of interpretation of BL
8. Referring to paragraph 11 of Appendix I to the paper provided by the Administration, Mr Ronald ARCULLI questioned the Administration's view that the legislature of HKSAR could not, constitutionally, enact a provision governing the interpretation of BL. He said that as some provisions of BL provided for their implementation through domestic legislation, there might be a need to spell out in these domestic legislation the meaning of certain words in a BL provision.
9. While agreeing that a piece of legislation could spell out in its provisions the meaning of certain words in a BL provision, DPGC(LP) said that the legislature could not however enact a piece of legislation stipulating how the court should interpret BL. It had been set out in BL158 that the court and SC of NPC had the power to interpret provisions of BL "on their own".
10. Mr Martin LEE commented that the arguments of the Administration on whether the legislature was constitutionally competent to enact a provision concerning the rules of interpretation of BL, as set out in paragraph 12 of Appendix I to the Administration's paper, was unconvincing. He enquired whether there were canons of interpretation of Ordinances and BL that were applicable to one but not the other. He pointed out that BL had provided for the continued application of the common law to Hong Kong. As the common law included canons of interpretation, he enquired whether the court could resort to those canons in the interpretation of provisions of BL.
11. In response, DPGC(LP) said that while the court could resort to the canons of interpretation under the common law, it had to recognize also that the common law was constitutionally subject to provisions of BL. For example, BL11 stipulated that "no law enacted by the legislature of Hong Kong Special Administrative Region shall contravene BL". He added that the legislature had no power to force the court to adopt the canons of interpretation, as BL 158 had empowered the courts to interpret provisions of BL "on their own".
Issue of whether there was a need for the Bill
12. Miss Margaret NG questioned the need for the Bill. She said that where a provision of an Ordinance was ambiguous, some material was already admissible for statutory interpretation under Pepper v Hart. Furthermore, the common law had already developed beyond Pepper v Hart. To her knowledge, there was no document mentioned in the Bill which could not be considered by the court unless the Bill was passed. She said that the interpretation of laws required much flexibility. As it was necessary to take into consideration the circumstances and particular questions that arose, she considered that the proposals under the Bill might not provide any benefit to statutory interpretation. Mr Ronald ARCULLI added that the parliamentary context of Hong Kong was very different from that under Pepper v Hart. The codification of the rules under Pepper v Hart might not be appropriate.
13. Mr Martin LEE also questioned the need for the Bill. He said that the common law would continue to apply and develop in Hong Kong. If the Bill, which was modelled on the relevant Australian legislation, was passed, the Administration might be separating Hong Kong from other common law jurisdictions. He added that an Ordinance was different from BL, which was a constitution, and expressed reservation about applying the principles of interpretation of an Ordinance to the interpretation of BL.
14. DPGC(LD) said that the common law had been specifically recognized in proposed section 19A(7), which stated that "The provisions of this section shall be in addition to and not in derogation from the common law applicable to the interpretation of a provision of an Ordinance". DPGC(LP) referred to paragraphs 16 and 17 of Appendix I to the Administration's paper and said that it was not the first time that what was in the common law was codified in legislation. The Bill only sought to save litigation costs and time. Proposed section 19A specified the main items of material relevant to statutory interpretation. This would avoid the need to provide case laws in support of the presentation of such material. It would also save court time in arguing whether such extrinsic material was admissible. Miss Margaret NG expressed doubt about whether the Bill would bring about cost savings, as the reduction in photocopying of case laws might be offset by an increase in the photocopying of Official Record of Proceedings of the Legislative Council. She considered that photocopies of cases of considered judgment were more useful than speeches made by government officials and LegCo Members, who were familiar with the enactment but not the interpretation of laws.
15. Miss Margaret NG objected to enacting any legislation setting out how the court should interpret the law. DPGC(LD) responded that proposed section 19A did not stipulate how the court should interpret the law. In no way would it restrict the rules of interpretation under the common law. It only sought to codify the list of extrinsic materials that could be used in interpretation in the event that a provision of an Ordinance was ambiguous.
Whether the Bill would introduce changes to the rules of interpretation
16. The Chairman said that, to his knowledge, the judgment of Pepper v Hart related to the admissibility of the speech of the presenter of a bill at the Second Reading debate. The Bill seemed to extend the scope of admissible materials to other extrinsic materials in proposed section 19A. DPGC(LP) responded that the Bill sought to set out clearly that extrinsic materials under proposed section 19A were admissible in the interpretation of an Ordinance. It just sought to codify the rules of statutory interpretation. Miss Margaret NG considered that the Administration was changing the law by setting out in legislation how the court should interpret statutes. DPGC(LP) reiterated that the Bill only sought to remove uncertainty from the list of materials that would be admissible in statutory interpretation. It would not change the rules of interpretation.
17. Miss Margaret NG said that although it might be stressed in the Second Reading debate on the Bill that proposed section 19A would be inapplicable to the interpretation of BL, there would still be debate in the court on its applicability to the interpretation of BL. She opined that it would be most desirable to enact no legislation to bind the court on statutory interpretation. DPGC(LD) reiterated that the Administration could move a CSA along the line that "nothing in proposed section 19A shall in any way prejudice the laws applicable to the interpretation of BL". The Administration would take steps to ensure that proposed section 19A could not be cited in any way to narrow down or exclude any principle in relation to the interpretation of BL. DPGC(LP) said that proposed section 19A would not have any binding effect on the court. It only set out what was admissible. The court was at liberty to refer to the materials stated in the proposed section as appropriate.
18. Mr Martin LEE opined that flexibility should be provided to the court in dealing with individual cases. DPGC(LP) responded that proposed section 19A would not affect flexibility in interpretation.
Issue of savings in court time
19. As regards the savings in court time which would result from the enactment of the Bill, DPGC(LP) quoted an example that if a counsel intended to introduce a treaty for statutory interpretation, it would only be necessary to cite section 19A(2)(d). Much court time would be saved in assessing whether the extrinsic material presented was admissible. It would save court time on arguments about the admissibility and usefulness of the material.
20. Miss Margaret NG disagreed. She said that whether certain material was admissible was subject to the decision of the court. Mr Martin LEE added that if a counsel intended to introduce certain extrinsic material under section 19A(2)(c), it would be necessary to first explain under section 19A(1)(a) how the text of a provision was ambiguous. Thus, court time would still be needed in deciding whether the text was ambiguous. Mr TSANG Yok-sing added that even if a counsel claimed that a provision was ambiguous, another counsel might disagree with the view. Under such circumstances, much time would still be spent in debating whether the provision was ambiguous.
| 21. Miss Margaret NG requested the Administration to produce evidence on additional costs that had been saved or incurred by using extrinsic material in statutory interpretation and an estimate of the savings in costs.
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Question of whether legislative reform or codification of existing rules was proposed in the Bill
22. The Chairman enquired whether the speech made by the presenter of a Bill could be presented to the court without proposed section 19A. He said that proposed section 19A seemed to confer a wider power for the use of extrinsic materials than those permitted under Pepper v Hart. He expressed concern that it was unclear as to whether the Bill sought to introduce a reform or merely a codification of existing rules.
23. Miss Margaret NG shared her experience in the court. She said that when there were differences on the interpretation of an important provision of a legislation, the court had seldom refused the presentation of material to assist in interpretation. Instead of providing assistance in interpretation, proposed section 19A might lead to disputes regarding whether certain material was admissible in interpretation. Without proposed section 19A, the issue of what material was admissible would be determined by the court.
24. DPGC(LP) said that the Bill sought to achieve both legislative reform and codification of existing rules. The materials in proposed section 19A had been admitted by the court in different cases. The Bill sought to set out that all these materials were admissible without the need to present piles of case laws to cite the authorities.
25. Miss Margaret NG said that when certain materials were cited, it would be necessary to inform the court of the purpose of such citation. The Bill had the disadvantage that instead of construing the case laws, the court and counsels would be construing the provisions of proposed section 19A. Hence, a reduction in litigation costs might not be achieved. She added that if the interpretation of laws was still under development, it would be inappropriate to codify the rules of interpretation.
| 26. To facilitate members' consideration of whether or not to support the Bill, the Chairman requested the Administration to highlight the items in proposed section 19A that could be introduced in the court even if the Bill was not passed. Mr Martin LEE and Miss Margaret NG suggested that the Administration should provide a table setting out -
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- the current position regarding the admissibility of each of the materials listed in subsections (2)(a) to (2)(i) as an aid to statutory interpretation and the authority under which they were admissible; and
- whether each of the provisions in subsections (2)(a) to (2)(i) was a legislative reform or a codification of existing rules.
Miss NG added that the assessment of whether a certain material should be admissible should not be based on whether the court was allowed to examine the material, but whether the material would provide assistance in interpretation. This should always be the test on whether certain material was admissible. She said that the provision of the requested table by the Administration would facilitate members' consideration of the Bill. Where a provision was found unacceptable, a CSA could be moved to amend or remove it. DPGC(LP) said that such an approach might have the risk of reducing the court's power of interpretation.
27. Mr Martin LEE said that the Law Reform Commission's Report on Extrinsic Materials as an Aid to Statutory Interpretation (the LRC Report) was published in March 1997. As the common law was developing continuously, there might have been changes over the past two years. The Administration should update the relevant proposals in the LRC Report.
Administrative guidelines for the interpretation of BL
28. Mr HUI Cheung-ching said that if the rules for interpretation of BL were not codified, there might be no rules to follow. He enquired whether the Administration would consider drawing up administrative guidelines on the interpretation of BL. Mr Martin LEE said that even if the rules were not codified, there were still a number of precedents which provided the rules of interpretation. Miss Margaret NG added that there was no common law principle which empowered the Administration to draw up guidelines on the interpretation of laws. The Chairman added that whether the Bill was to be passed was a different issue from the problems regarding the rules of interpretation of BL.
III. Date of next meeting
29. Members agreed that the next meeting would be held when the Administration's response to the issues raised by members was available.
30. The meeting ended at 6:15 pm.
Legislative Council Secretariat
9 September 1999
