LC Paper No. CB(1)1267/98-99

Ref : CB1/SS/5/98

Purpose

This paper reports on the deliberations of the Subcommittee to study issues relating to the tabling of subsidiary legislation in Legislative Council (LegCo).

Background

2. At the meeting of the Subcommittee on Ozone Layer Protection (Controlled Refrigerants) Regulation (Commencement) Notice 1998 on 21 January 1999, members noted that a total of 19 items of subsidiary legislation gazetted on 27 June 1997 (L.N.s 359 to 376 of 1997) and 30 June 1997 (L.N.s 377 and 378 of 1997) had not been tabled in Council. A list of these items is at Appendix I.

The Subcommittee

3. The Subcommittee reported the problem to the House Committee on 22 January 1999. The House Committee decided to set up another Subcommittee to study the legal and procedural issues relating to the tabling of subsidiary legislation in LegCo. Hon Ronald ARCULLI was elected Chairman of the Subcommittee which has held two meetings with the Administration. The membership list of the Subcommittee is at Appendix II.

Deliberations of the Subcommittee

Validity of subsidiary legislation not tabled in LegCo

4. The first issue considered by the Subcommittee is whether failure to table a piece of subsidiary legislation will render it invalid. The Subcommittee is of the view that the legislative process is considered completed upon the publication of the subsidiary legislation in the Gazette. In other words, the subsidiary legislation will have legal effect upon its publication in the Gazette. The tabling requirement stipulated in section 34(1) of the Interpretation and General Clauses Ordinance (Cap. 1) provides a mechanism for LegCo to scrutinize subsidiary legislation made under delegated authority conferred in primary legislation. This enables LegCo to supervise its delegates in the exercise of their power to make subsidiary legislation. The Subcommittee's views on this issue are the same as those of the Subcommittee on the Ozone Layer Protection (Controlled Refrigerants) Regulation (Commencement) Notice 1998 which have been reported to the House Committee on 5 February 1999.

The need for changing the law-making process

5. On the basis that non-tabling of a piece of subsidiary legislation would not affect its validity, the Subcommittee has examined whether the law should be changed to make tabling of subsidiary legislation an integral part of the legislative process. Members note that non-tabling of subsidiary legislation rarely happens and it has happened on this occasion during the changeover of sovereignty. They also consider that negative vetting is a useful mechanism that has worked well so far. It enables LegCo Members to maintain control over the making of subsidiary legislation without it being burdened unduly on matters which are routine or technical in nature and have little policy content. The Subcommittee agrees that if, in the opinion of Members, a subject matter will likely be controversial, they may well require the making of the relevant subsidiary legislation be subject to the positive vetting procedure when scrutinizing proposed primary legislation. The Subcommittee is satisfied that the existing law need not be changed for the purpose of requiring the tabling of subsidiary legislation as an integral part of the legislative process for the making of subsidiary legislation.

Responsibility and mechanism for tabling of subsidiary legislation

6. To avoid recurrence of non-tabling of subsidiary legislation, the Subcommittee has explored with the Administration and the LegCo Secretariat ways to improve the existing arrangement. Under the existing arrangement, the Government Printer sends each issue of the Gazette to the LegCo Secretariat. The Clerk to LegCo then tables the Legal Supplement No. 2 of the Gazette at the next following LegCo meeting.

7. Members note that not all the Legal Notices contained in the Legal Supplement No. 2 of the Gazette need to be tabled in LegCo. Executive orders made by the Chief Executive and resolutions passed by LegCo in relation to the making of the Rules of Procedure or the extension of the scrutiny period of a piece of subsidiary legislation are published in the Gazette as Legal Notices but these are not subsidiary legislation. The Subcommittee holds the view that although the actual laying of subsidiary legislation is done by the LegCo Secretariat, the responsibility for tabling of subsidiary legislation undoubtedly rests with the maker of the subsidiary legislation. The sending by the Government Printer of the Gazette does not constitute sufficient notice to the Clerk to LegCo in compliance with section 34(1) of Cap. 1 regarding the tabling of subsidiary legislation. Members also consider that it is not appropriate for the Clerk to LegCo to take on the duty to identify the Legal Notices which should or should not be tabled.

8. For the purpose of ensuring all that need to be tabled are tabled, members suggest and the Administration and the LegCo Secretariat agree to put in place a new mechanism under which the Legal Supplement No. 2 of the Gazette will be divided into two parts; Part A will include items which are required to be tabled pursuant to section 34(1) of Cap. 1, while Part B will include those which are not so required. The Director of Administration will send a one-off written notice to the Clerk to LegCo to confirm that with effect from a certain date, all items contained in Part A of the Legal Supplement No. 2 of the Gazette shall be tabled in the next following LegCo meeting. The Administration is discussing with the LegCo Secretariat on the exact wordings to be shown on the front page of the Legal Supplement No. 2 to ensure that the proposed methodology will work practically in compliance with the legal requirement.

Rectification

9. Although the Subcommittee forms the view that the non-tabling of the 19 items of subsidiary legislation gazetted on 27 June 1997 and 30 June 1997 does not render them ineffective, the fact remains that these items of subsidiary legislation have not been tabled. Members note and the Administration confirms that section 34(1) of Cap. 1 does not provide a way of resolving the issue of non-tabling. The statutory timeframe for the tabling of the subsidiary legislation has long passed and LegCo can no longer scrutinize the subsidiary legislation under section 34(2) of Cap. 1 now. To remove any doubt on the validity of the subsidiary legislation not tabled in LegCo, the Administration is considering the desirability of enacting validation legislation. The Administration has assured members that should it eventually decide to proceed with enacting validating legislation, the relevant bill would be drafted in such a way as not to contravene the International Covenant on Civil and Political Rights.

10. As regards the confusion caused by the publication of two Commencement Notices in respect of the Ozone Layer Protection (Controlled Refrigerants) Regulation (General Notice No. 4794 of 1993 and Legal Notice No. 391 of 1998), the Subcommittee notes that the Administration is considering the need to validate the former Notice and repeal the latter Notice by legislative means.

11. The Subcommittee will monitor the decision of the Administration on the matter.

Recommendation

12. The Subcommittee supports the implementation of the new lay-out of Legal Supplement No. 2 of the Gazette for tabling of subsidiary legislation described in the foregoing paragraphs.

Advice sought

13. Members are requested to note the deliberations of the Subcommittee and support its recommendation.


Legislative Council Secretariat
5 May 1999

Appendix I

L.N. No.	Titles of L.N.
359 of 1997	Births and Deaths Registration Ordinance (Amendment of Second Schedule) Order 1997
360 of 1997	Immigration (Places of Detention) (Amendment) Order 1997
361 of 1997	Immigration (Treatment of the Detainees) (Amendment) Order 1997
362 of 1997	Declaration of Change of Titles (General Adaptation) Notice 1997
363 of 1997	Declaration of Change of Titles (Deputy Director of Immigration, Assistant Director of Immigration, Immigration Officer, Immigration Tribunal and Immigration Service) Notice 1997
364 of 1997	Arbitration (Amendment) Ordinance 1996 (75 of 1996) (Commencement) Notice 1997
365 of 1997	Enduring Powers of Attorney Ordinance (17 of 1997) (Commencement) Notice 1997
366 of 1997	Powers of Attorney (Amendment) Ordinance 1997 (18 of 1997) (Commencement) Notice 1997
367 of 1997	Patents Ordinance (52 of 1997) (Commencement) Notice 1997
368 of 1997	Registered Designs Ordinance (64 of 1997) (Commencement) Notice 1997
369 of 1997	Official Secrets Ordinance (62 of 1997) (Commencement) Notice 1997
370 of 1997	Labour Relations (Amendment) Ordinance 1997 (75 of 1997) (Commencement) Notice 1997
371 of 1997	Law Reform (Miscellaneous Provisions and Minor Amendments) Ordinance 1997 (79 of 1997) (Commencement) Notice 1997 372 of 1997 Fugitive Offenders (Australia) Order (L.N. 200 of 1997) (Commencement) Notice 1997
373 of 1997	Fugitive Offenders (Drugs) Order (L.N. 274 of 1997) (Commencement) Notice 1997
374 of 1997	Supreme Court Civil Procedure (Use of Language) RulesSupreme Court Civil Procedure (Use of Language) Rules (L.N. 266 of 1997) (Commencement) Notice 1997
375 of 1997	Prison (Amendment) Rules 1997 (L.N. 275 of 1997) (Commencement) Notice 1997
376 of 1997	Drug Trafficking (Recovery of Proceeds) (Designated Countries and Territories) (Amendment) Order 1997 (L.N. 308 of 1997) (Commencement) Notice 1997
377 of 1997	Long-term Prison Sentences Review Ordinance (86 of 1997) (Commencement) Notice 1997