Legislative Council

LC Paper No. CB(1) 864/98-99

Ref: CB1/SS/4/98

Purpose

This paper reports on the deliberations of the Subcommittee on Road Traffic (Construction and Maintenance of Vehicles) (Amendment) Regulation 1999.

Background

2. Regulation 31 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (the Regulations) (Cap. 374 sub. leg.) requires inter alia every motor vehicle to be properly constructed and maintained so as not to emit excessive smoke. The smoke measuring apparatus is specified in column 1 of the Fourth Schedule of the Regulations, and the maximum permitted smoke or visible vapour level are set out in columns 2 and 3 of the same schedule. At present, column 1 specifies "Hartridge MK3 Smokemeter" as the apparatus for measuring smoke.

The Regulation

3. The Administration seeks to amend the Regulation to enable the Commissioner of Transport to specify models of smoke measuring apparatus by a notice in the Gazette. The amendment also specifies that such a notice will not be subsidiary legislation.

The Subcommittee

4. Members agreed at the House Committee meeting on 22 January 1999 to form a Subcommittee to study the Amendment Regulation. Hon Mrs Miriam LAU Kin-yee was elected Chairman of the Subcommittee. The Subcommittee has held one meeting with the Administration. The membership of the Subcommittee is set out in Appendix I.

Deliberations of the Subcommittee

5. Members of the Subcommittee have two specific areas of concern:

1. the need for substituting the model of smokemeter; and
   
   
2. the justifications and implications for changing the existing scrutiny mechanism by the Legislative Council.

Smokemeter Model

6. According to the Administration, there are two major reasons for recommending a change in the model of smokemeter. The "Hartridge MK3 Smokemeter" and its spare parts are no longer in production, and a substitute is required. Furthermore, with the advancement of technology, new models of smokemeters of better performance and reliability have been produced. These models are of international standards (including European Economic Community and International Standards Organization standards) and have been in use in other countries. However, these models cannot be used in Hong Kong unless the Fourth Schedule is amended.

7. As regards the benefits which the new models will bring about, the Administration has explained that at present the Police when conducting a smoke emission test has to take photos of the smoke emitted by standing right in front of the exhaust pipe of a motor vehicle. The use of the new models would replace such an outdated mode of operation and eliminate existing inadequacies in that the Police would be able to make use of a sampling probe for insertion into exhaust pipes in order to obtain records of the level of smoke emitted. Enforcement of the Regulation would therefore become more efficient and effective. In reply to members, the Administration advises that the new models will also tie in with the use of other equipment such as the use of dynamometers in conducting mock tests on smoke emission.

8. On the effect of the change on the permitted level of smoke and visible vapour emission, the Administration has affirmed that no change has been proposed to the permitted smoke level. The existing level accords with international standards, and the need for tightening such a level does not arise. Scrutiny Mechanism

9. In accordance with existing mechanism, amendments to the Regulations are made by way of a subsidiary legislation which is tabled in the Council and subject to scrutiny by Members. As the Amendment Regulation specifies that notices on the model of smokemeters published in the Gazette by the Commissioner of Transport will not be subsidiary legislation, members of the Subcommittee are concerned about the implications of such a proposal as this means that such changes in future will not be subject to negative vetting by the Council.

10. Members of the Subcommittee have examined the scrutiny mechanism from two dimensions: the Amendment Regulation under consideration in particular and the broader issue of the scrutiny of similar proposals in general. The Subcommittee has also sought the advice of the Assistant Legal Adviser in this respect.

11. The Assistant Legal Adviser has advised that as the said notice will not be subsidiary legislation, Members of the Council will not be able to scrutinize such notices in future in accordance with section 34 of the Interpretation and General Clauses Ordinance (Cap. 1). He invites members to consider the change which deprives Members of the Council of an opportunity to scrutinize legislative proposals by the Administration under section 34 of Cap. 1.

12. To address members' concern, the Administration has explained its position as follows:

1. subsidiary legislation requiring scrutiny by the Council is voluminous and it is estimated that amendments to the Regulations may have to be made about once a year. As such, the Administration hopes to be able to cut down on the workload thus generated on Members and on the civil service by reducing the number of subsidiary legislation as far as possible and where justified; and
   
   
2. the proposed change is confined only to the smoke measuring apparatus in column 1 of the Fourth Schedule of the Regulations. No change is proposed to the permitted smoke or visible vapour level specified in columns 2 and 3. If changes to columns 2 and 3 were deemed necessary in future, these will continue to be introduced in the form of subsidiary legislation in accordance with the requirement in Section 34 of the Interpretation and General Clauses Ordinance (Cap. 1), and subject to negative vetting by the Council.

13. The Subcommittee has further considered the question in the light of the fore-going advice. The amendment under consideration involves only a change in the model of smokemeter used for testing smoke emission. The proposed change is aimed at improving efficiency and is technical in nature, and neither is the proposal controversial nor does it involve a matter of policy. With the Administration's assurance that any change to the level of smoke and visible vapour emission will continue to be made in the form of subsidiary legislation, members find the proposed amendment acceptable.

14. As regards the broader concern about changes made in the scope of legislative proposals which are subject to scrutiny of the Council under section 34 of Cap. 1, members of the Subcommittee are also aware of similar proposals made by the Administration, as in the case of the Fisheries Protection (Amendment) Ordinance 1998 and the Film Censorship (Amendment) Bill 1998. While members appreciate that each proposal will have to be examined on its own merits, and that amendments involving say changes in the use of equipment with the advancement in technology may be justified in general, members consider there to be a need to draw the attention of other Members of the Council to the occurrence of such proposals by the Administration. Members of the Subcommittee are of the view that a cautious approach is called for in examining such proposals, and that the right of Members of the Council in scrutinizing legislative proposals should not be compromised particularly when matters of policy or controversial issues are involved. At Appendix II is a brief description of recent proposals made by the Administration.

Recommendation

15. The Subcommittee recommends that:

1. the Amendment Regulation be supported; and
   
   
2. the attention of other Members of the Council be drawn to the concern set out in paragraph 14 above.

Advice sought

16. Members are invited to note the deliberations of the Subcommittee and support the recommendation at paragraph 15 above.


Legislative Council Secretariat
4 February 1999

Appendix I

Total : 6 members

Appendix II

Name of Ordinance/ Bill/Sub. Leg.	Relevant Provisions	Effect
Film Censorship (Amendment) Bill 1998	Repealing section 29(1)(e), (h), (hb), (hc) & (k) of the Film Censorship Ordinance (Cap. 392) and adding the proposed section 29B. (Clauses 12 & 13 of the Bill)	Before the amendment, forms of certain certificates are to be provided for by the Secretary for Information Technology and Broadcasting by regulations. The amendment gives the Film Censorship Authority the power to set the forms administratively, and these forms will no longer be subject to negative vetting.
International Organisations (Privileges and Immunities) Bill	The power to make Orders giving international organizations privileges and immunities is exercised by the Chief Executive under the International Organizations and Diplomatic Privileges Ordinances (Cap. 190), and such Orders are subject to negative vetting by the Council. The Bill (scheduled for first reading on 10 February 1999) seeks to specify that section 34 of the Interpretation and General Clauses Ordinance (Cap. 1) will not apply to such Orders (Clause 3).	The Orders to be made under the proposed Ordinance will not be subject to negative vetting by the Legislative Council.
Fisheries Protection (Amendment) Ordinance 1998	New section 4(gb) gives the Director of Agriculture and Fisheries the power to specify by notice in the Gazette the class or description of prohibited apparatus.	Such notices in the Gazette may not be subject to scrutiny by the Council.

Legislative Council Secretariat
4 February 1999