Legislative Council

LegCo Paper No. CP 608/98-99

Ref : CP/G01/12 (II)

Purpose

This paper reports on the deliberations of the Subcommittee on Review of the Operation of the LegCo Redress System.

Background

2. One of the purposes of establishing the Office of the Unofficial Members of the Executive and Legislative Councils (UMELCO) in 1963 was to promote closer relationships between the Unofficial Members of the two Councils and members of the public, who were invited to call at the Office to put forward their views on any matter of public interest or to lodge individual complaints against Government departments. In order to deal with public complaints more effectively, the UMELCO Office was strengthened in 1970. A more effective system for dealing with public complaints and representations evolved, with the objective of giving the maximum possible help to any person who found himself in difficulty with a Government department and of providing every facility for any person wishing to put forward to UMELCO his views or suggestions on any matter of public concern. The UMELCO Redress System (or the LegCo Redress System as it is now called) has become better known over the years.

3. The scope of the LegCo Redress System has remained largely unchanged since 1970. The operation of the LegCo Redress System is neither defined nor confined by the law; neither is it covered by the Rules of Procedure and House Rules of the Legislative Council. Internal working guidelines are drawn up for the staff of the Complaints Division of the LegCo Secretariat to follow in processing cases.

The Subcommittee

4. At the 5th House Committee meeting held on 24 July 1998 it was agreed to form a subcommittee to examine what structural changes in the LegCo Redress System (the System) needed to be made in the light of the provision in Article 73(8) of the Basic Law relating to the Council's power to receive and handle complaints from Hong Kong residents. Dr Hon LEONG Che-hung was elected Chairman of the Subcommittee. The membership list of the Subcommittee is at Appendix I. The Subcommittee held five meetings.

Deliberations of the Subcommittee

5. The Subcommittee has reviewed eight aspects of the System detailed in paragraphs 6-41, with particular attention to "Extension of the Legislative Council (Powers & Privileges) Ordinance to cover meetings conducted under the System" (para 6-16) and "Scope of the System" (para 17-22).

Extension of the Legislative Council (Powers & Privileges) Ordinance to cover meetings conducted under the System

The existing arrangement

6. At present meetings held between Members and the public (i.e. interviews) and meetings between Members and the Administration (i.e. case conferences) on complaint cases handled under the System are not covered by the Legislative Council (Powers & Privileges) Ordinance (Cap 382) (the Ordinance), as these are not meetings of the Council or its committees. As a general rule, these meetings are closed meetings. Some meetings with the public are conducted in the presence of the mass media invited by the complainants (mostly deputations).

The Subcommittee's proposal

7. Some members of the Subcommittee have reservations on the extension of the privileges and immunities conferred under sections 3 and 4 of the Ordinance to cover meetings conducted under the System. They are of the view that if other redress systems work well without coverage of similar privileges and immunities, the LegCo Redress System should not have this special advantage, as it might be seen as posing an unfair competition with other redress systems. They consider that Members' interviews with deputations should be conducted behind closed doors as in the case of other redress systems.

8. Other members of the Subcommittee consider that as one of the functions of LegCo is "to receive and handle complaints from Hong Kong residents", as stipulated under Article 73(8) of the Basic Law, the operation of the Redress System is within the scope of Council business; hence the Ordinance should be extended to cover meetings conducted under the System. The privileges and immunities sought would facilitate discussion of complaints and ultimately benefit the complainants. Furthermore, they are no more than those conferred on Members at meetings of Panels, which also receive deputations. Since some meetings are conducted in the presence of the press invited by complainants, it will be inadvisable to revert to closed meetings, going against the trend of a more transparent society. In cases where individual complainants would like to have their interviews conducted in private, their wishes would be respected. In line with the existing practice in committee meetings, these powers and privileges should apply to Members and public officers designated by the Chief Executive attending these meetings, but not to members of the public. Complainants will be reminded of the matters which they should pay attention to for their own protection in presenting their cases at open meetings. A draft general reminder prepared by the Legal Service Division is at Appendix II for Members' consideration. The Subcommittee has considered the following ways to convey the reminder to the complainants :

1. attach it to the notice of meeting to complainants;
   
   
2. hand it out at the meeting; and/or
   
   
3. read it out by the Chairman at the beginning of the meeting.

The Subcommittee generally prefers (a).

Options to extend the Ordinance

9. There are two options to extend the Ordinance to cover meetings conducted under the System.

10. Option 1 is to amend the Ordinance either by means of a Government bill or a Member's bill. The Administration is not prepared to introduce a Government bill because it considers that there is no need to introduce changes to a system which has been operating smoothly. If it is decided to introduce a Member's bill, Members have to bear in mind the provisions in Article 74 of the Basic Law that the bill should not relate to public expenditure, political structure or the operation of the government, and that the Chief Executive's written consent will be required before bills relating to government policies are introduced. It is envisaged to take about two months to have the bill drafted (by the LegCo Secretariat), have the format of the bill approved (by the Law Draftsman) and get the bill ready for introduction to the Council.

11. Option 2 is to amend the Rules of Procedure to provide that meetings conducted under the Redress System are made meetings of a committee of the Council. It is proposed that a Committee on Redress (CR) may be set up under the Council by a resolution to amend the Rules of Procedure under Article 75 of the Basic Law. The new committee will then be automatically covered by the Ordinance.

12. The CR will be responsible for the policy on the Redress System. It will comprise all Members of the Council. The Chairman and Deputy Chairman of the CR will be elected among Members. It will meet as and when required. Day-to-day interviews with deputations and handling of their complaints are to be carried out by its subcommittees formed by the Duty Roster Members (DRMs) and other interested Members.

13. The Chairman of the CR will approve the weekly lists of DRMs compiled by the Complaints Division in consultation with Members. The DRMs on duty will be responsible for overseeing the day-to-day operation of the Redress System and taking turns to be on 'ward duty' to receive complaints from individual complainants during their duty week.

14. A subcommittee of the CR will consist of not less than three members, including the chairman to be elected among its members at its first meeting. A subcommittee will not be formed if there are less than three members including the chairman. In the event that the Members actually turning up at an interview fail to meet the quorum of three, the interview with the deputation will go ahead but, under those circumstances, the meeting will be regarded as an informal meeting which will not be covered by the Ordinance.

15. Those Members who support the proposal to extend the Ordinance do not have any strong view on either option. As compared with Option 1, the proposed committee system in Option 2 will inevitably result in more formalities and correspondingly less flexibility, such as requirement for election of a chairman/deputy chairman, a quorum for each subcommittee meeting etc.

16. The Subcommittee invites Members' consideration on :

1. whether the powers and privileges conferred under the Legislative Council (Powers & Privileges) Ordinance should be extended to cover meetings conducted under the LegCo Redress System;
   
   
2. if so, whether Option 1 or Option 2 should be adopted;
   
   
3. if Option 1 is adopted, whether the amendment bill should be introduced by the Administration or by a Member (for example, the Chairman of the Subcommittee on Review of the Operation of the LegCo Redress System on behalf of Members); and
   
   
4. whether a note should be given to the complainants reminding them of the matters they should pay attention to in presenting their cases at open meetings; if so, by what means.

Scope of the System

The existing scope

17. Complaints and representations about the decisions and actions of all government bureaux and departments fall within the scope of the System.

18. Matters outside the scope include :

1. Court decisions, matters which are subjudice or could involve criminal charges, and matters relating to judicial and quasi-judicial proceedings.
   
   
2. Matters outside the jurisdiction of the Hong Kong Special Administrative Region.
   
   
3. Requests for legal advice or legal services.
   
   
4. Private disputes.
   
   
5. Labour disputes between individual employees and employers, including those between individual civil servants and Government as an employer.
   
   
6. Complaints against individual members of the three-tier system of representative government (i.e. Legislative Council, Municipal Councils and District Boards), or other government boards and committees.
   
   
7. Complaints against Police or ICAC officers.
   
   
8. Matters relating to a non-government body.

19. In advising complainants that their complaints are outside the scope of the System, they are usually also informed of the proper complaint channels to pursue their cases.

The Subcommittee's views

20. It is noted that the existing scope has remained largely unchanged since 1970. No formal record can be traced on the rationale of the exclusion of the items listed in paragraph 18.

21. In general, the Subcommittee considers that with the expanded scope of the Legislative Council, the scope of its Redress System should not be strictly confined to decisions and actions of government bureaux and departments. In principle, the System should not go beyond the scope of work of the Council as stipulated in Article 73 of the Basic Law. The scope of Panels might be adopted as the scope of the System, as there is no reason why matters which might ultimately be referred to the Panels for review of the relevant policies should be excluded from the System. Some Members caution that the Redress System should not be mistaken as an appeal mechanism.

22. Having scrutinized the items presently outside the scope of the System together with examples of complaints on each item, the Subcommittee recommends that the following matters are normally outside the scope of the System :

1. Court decisions, matters which are subjudice or could involve criminal charges, and matters relating to judicial and quasi-judicial proceedings.
   
   
2. Matters outside the jurisdiction of the Hong Kong Special Administrative Region.
   
   
3. Requests for legal advice or legal services.
   
   
4. Private disputes.
   
   
5. Labour disputes between individual employees and employers, except those of wide public concern or relating to discrimination of trade union leaders.
   
   
6. Complaints against individual members of the three-tier system of representative government (i.e. Legislative Council, Municipal Councils and District Boards).
   
   
7. Complaints which are handled by independent or statutory channels (e.g. ICAC Complaints Committee, Independent Police Complaints Council, Labour Tribunal, Administrative Appeals Board).

While the above matters are normally outside the scope of the Redress System, complaint cases should be handled flexibly.

The Duty Roster Members System

The existing practice

23. The DRM system, which receives petitions and representations from the public, has been in existence for a long time. Other Members not on duty may also join a DRM interview, either at the invitation of the deputation or at their own initiative. Each DRM also takes turn during his/her duty week to be on "ward duty" for two hours to receive individual complainants. The rationale of the system is to share the workload among Members.

24. Members, in groups of six, are put on a weekly roster drawn up by the Complaints Division. In drawing up the roster, the Complaints Division tries to make it as representative as possible with at least one member from each main political party. (Independent Members not affiliating to any party are put in the same grouping.)

25. The present practice is that the same group of DRMs meeting the deputation will follow through the case. If after a spell of time another deputation with a similar complaint requests to see Members, another group of DRMs will meet the second deputation. The second group of DRMs will be informed of the decision of the first group of DRMs handling the previous deputation and the outcome of the case, if available. Depending on the time gap between the two deputations and if circumstances permit, the two groups of DRMs will be advised to take follow-up actions jointly on the cases (e.g. holding case conference with the Administration) so as to avoid duplication of efforts and inconsistency as far as possible.

The Subcommittee's views

26. In general the Subcommittee considers that the DRM system and the Ward system work well. Whilst it would be up to individual Members to decide whether the complaints should be handled by their own offices or referred to the Complaints Division, Members should as far as possible deal with complaints on local and individual issues at their own offices.

27. Some Members of the Subcommittee propose that arrangements be made under the existing DRM system :

1. to enhance consistency and continuity in handling complaint cases of similar nature (e.g. complaints in connection with the construction of the West Rail); and
   
   
2. to facilitate Members returned by the relevant geographical constituencies and functional constituencies to take part in cases handled by DRMs.

28. Having considered several options including setting up standing groups on a subject or geographical constituency basis, the Subcommittee proposes the following arrangements :

1. All 60 Members should be notified of meetings with deputations so that interested Members can participate in any of these meetings. Written notice of the place, date and time of every meeting will be given to Members at least three days before the date of the meeting, but shorter notice may be given where urgency of the case so dictates.
   
   
2. The same group of Members will handle complaints on substantially the same issue lodged by the same or other deputations.

Procedures for follow-up actions on complaint cases

The present practice

29. Complaints are lodged with the Complaints Divisions by phone, post, fax, E-mail or in person. There are also cases referred to the Division by individual Members.

30. Complaints from individuals, largely on personal matters, are handled by staff of the Complaints Division on behalf of Members. Guidance from a DRM may be sought on the processing of difficult cases.

31. Complaints from deputations are mostly received by DRMs with the assistance of staff of the Complaints Division. After each interview, Members discuss and agree on the appropriate follow-up actions to be taken. These actions may include writing to the Administration, case conference with the Administration, site visit, referral to the relevant Panel or Bills Committee etc. The outcome of each case is reported to the Members handling the case. Each case is closed only with Members' approval. The deputation will be informed of the outcome of the case.

The Subcommittee's view

32. The Subcommittee is satisfied with the existing procedures for following up cases.

Requests to meet different Members on ruled cases

The existing practice

33. The existing practice is that if an individual complainant or a deputation is not satisfied with the outcome of the case handled by a Member or a group of Members and requests for further interviews with other Member(s) on the same issue, the request will not normally be entertained unless there are new evidence or facts. Exceptionally, if the complainant is very insistent, the specified alternative Member(s) will be consulted on whether he(they) would like to take up the case. This practice is to avoid complainants from keeping on seeing different Members on ruled cases.

The Subcommittee's views

34. Some Members consider that such a request should, as a rule, be referred to the Member whom the complainant wishes to see for a decision, because a different Member might have a different perspective on a case. Some Members are of the opinion that there should be a limit for entertaining such requests in order to avoid abuse of the system and giving the impression to the public that different Members handle cases differently.

35. The Subcommittee is generally of the opinion that such a request should be referred to the Member concerned with a brief on the case and the advice of the previous Members who have met the complainant so as to facilitate the Member to decide whether to take up the case.

Requests to exclude Members from a Duty Roster Members interview

The existing practice

36. For various reasons, some deputations seek to exclude particular Members from an interview. The present practice is that such requests will not be entertained, but the Members concerned will be informed by the LegCo Secretariat. It is Members' own decision as to whether they should attend any interview with members of the public.

The Subcommittee's view

37. The Subcommittee agrees with the present practice.

Possible duplication of work of the Redress System with the work of The Office of the Ombudsman

The existing practice

38. On the basis of confidentiality and protection of personal data, there is no communication between The Ombudsman and the Complaints Division on the cases received respectively. Some complainants disclose voluntarily information on other complaint channels they have been to. If it is known that a case is awaiting the outcome of an investigation, the Complaints Division will suggest that action on the case be held in abeyance. However, if the complainants insist that their cases should be handled in parallel with other redress channels, their wish is normally respected.

The Subcommittee's views

39. The Subcommittee has divergent views on whether the Redress System should exclude those cases which have been or are being examined by The Ombudsman. Some Members consider that the LegCo Redress System is a more effective system in handling cases of an urgent nature, because Members can call urgent meetings with the Administration on the issues. Moreover, publicity given to certain cases in Members' meetings with the complainants in the presence of the media may expedite the case. Some Members are concerned about the duplication of efforts by the LegCo Redress System and other redress systems, including The Ombudsman. Also, the public may get the impression that the LegCo is competing with other redress systems, as it should be borne in mind that the main task of the LegCo is to legislate.

40. The Subcommittee concludes that cases examined or being examined by The Ombudsman and prima facie maladministration cases should not be totally excluded. Cases which appear to be more appropriately handled by other redress systems should be referred to those systems with the consent of the complainants.

Operation of other redress systems as compared with the LegCo Redress System

41. At the request of the Subcommittee, the LegCo Secretariat has prepared a research on the channels for redressing grievances in Hong Kong and some overseas countries, namely Japan, UK, USA and Australia. A copy of the research report (RP03/98-99) is at Appendix III.

Advice Sought

42. Members are invited to note the deliberations of the Subcommittee and to consider its proposals stated in this paper, summarised as follows :

1. The Legislative Council (Powers & Privileges) Ordinance should be extended to cover meetings conducted under the Redress System by amending the Ordinance by means of a Government bill or a Member's bill, or by amending the Rules of Procedure of the Legislative Council (para 16);
   
   
2. A note to complainants should be sent with the notice of meeting reminding them of the matters they should pay attention to for their own protection in presenting their cases at open meetings (para 16);
   
   
3. The scope of the Redress System should be extended beyond decisions and actions of government bureaux and departments (para 21-22);
   
   
4. All Members should be notified of meetings with deputations, and arrangement should be made for the same group of Members to handle complaints on substantially the same issue lodged by the same or other deputations (para 28);
   
   
5. The existing procedures for follow-up actions on complaint cases should continue (para 32);
   
   
6. Request from a complainant to meet a particular Member should be referred to him/her even though the case has been dealt with by another Member and there are no new evidence or facts (para 35);
   
   
7. Request from a complainant to exclude a particular Member from a DRM interview should be rejected (para 37); and
   
   
8. Cases examined or being examined by The Ombudsman and prima facie maladministration cases should not be totally excluded. Cases which appear to be more appropriately handled by other redress systems should be referred to those systems with the consent of the complainants (para 40).

Legislative Council Secretariat
24 November 1998

Appendix I

Appendix II

1. The complaint should be based on facts which can be substantiated. In view of possible legal liabilities, it is advisable to avoid making statements which tend to harm the reputation of another person in a way as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.
   
   
2. All documents and correspondence relating to the complaint should be made available for Members' reference. However, where such documents or correspondence were supplied to you in confidence it is advisable to obtain the express consent of the supplier of these documents or correspondence before you release them to Members.
   
   
3. The personal data you have given to the Secretariat will be kept confidential, subject to the need that the Secretariat may have to disclose such personal data to the relevant departments, authorities or organizations in the course of dealing with your complaint. In such a case you will be requested to give your consent to such disclosure in a separate form.
   
   
4. Members are performing their duties under the Basic Law to handle complaints. Complainants should consult their own lawyer or other professionals if they wish to obtain legal or other services.