Legislative Council

LC Paper No. CB(2)29/99-00
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon LEE Wing-tat
Hon Martin LEE Chu-ming, SC, JP
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon SZETO Wah

Member Attending :

Hon LEUNG Yiu-chung

Public Officers Attending :

Item III

Mrs Carrie YAU

Director of Administration

Mr Benedict LAI

Deputy Lam Officer (Civil law)

Mr Michael SCOTT

Senior Assistant Solicitor General

Ms Miranda CHIU

Deputy Director of Administration

Item IV

Mrs Carrie YAU

Director of Administration

Ms Miranda CHIU

Deputy Director of Administration

Mr Steve COOKSON

Acting Deputy Secretary for the Treasury

Mr Peter H H WONG

Senior Assistant Solictor General

Item V

Mr Clement C H MAK

Acting Secretary for Constitutional Affairs

Ms Carol YIP

Principal Assistant Secretary for Constitutional Affairs (3)

Mr Peter H H WONG

Senior Assistant Solictor General

Clerk in Attendance :

Mrs Percy MA

Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Mr Paul WOO

Senior Assistant Secretary (2)3

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I. Confirmation of minutes of meeting on 17 May 1999
(LC Paper No. CB(2) 2560/98-99)

The minutes of the meeting on 17 May 1999 were confirmed.

II. List of issues to be considered
(LC Paper No. CB(2) 2558/98-99(01))

2. Members noted the paper.

III. Review of existing mechanism for LegCo to monitor the exercise of delegated authority for making of subsidiary legislation
(LC Paper Nos. LS 186/98-99, CB(2) 2306/998-99(07) and 2558/98-99(02))

3. Referring to the two papers provided by the Administration, Director of Administration (D of Adm) summarized that different jurisdictions had different ways of dealing with subsidiary legislation. The United Kingdom, on which the Hong Kong law system was based, had encountered similar problems in trying to define subsidiary legislation. At present, Hong Kong had more than 1 000 pieces of subsidiary legislation made under 650 odd principal Ordinances. In view of Members' concern over the matter, the Administration would, wherever necessary, include an express provision in new legislation to make it abundantly clear whether a statutory instrument was subsidiary legislation.

4. At the request of Ms Emily LAU and referring to LC Paper No. LS186/98-99, Legal Adviser (LA) briefed members on the background of the subject -

1. The issue was referred to this Panel by the House Committee, as a result of the deliberations of the Panel on Transport on whether notices on the maximum fares for licensed ferry services issued by the Commissioner for Transport under section 33(1) of the Ferry Services Ordinance (Cap. 104) were subsidiary legislation. It was noted that if such a notice was not published in form of a legal notice, it would not be laid on the table of the LegCo. Accordingly, section 34 of the Interpretation and General Clauses Ordinance (Cap. 1) could not be brought into operation and the notice would not be subject to scrutiny by LegCo under the "negative vetting procedure";

2. Arising from concerns that the replacement of franchised ferry services by licensed ferry services would deprive the right of LegCo in scrutinizing proposals for fare adjustment, a member of the Panel on Transport had moved a motion to urge the Administration to follow the procedure of subsidiary legislation and table all future notices on the determination and adjustment of fares of licensed ferry services for scrutiny of the LegCo in the form of subsidiary legislation. Although the motion was negatived, the Panel considered that a clear distinction should be made in the relevant legislation between instruments of a legislative character and those of an administrative character;

3. Subsidiary legislation was defined under section 3 of Cap. 1 as "any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect". However, there was no direct legal authority on the precise meaning of "having legislative effect". As advised by the Administration, based on case references in other common law jurisdictions, a number of criteria had been adopted in determining whether an instrument had legislative effect, the most important of which was the legislative intent of the enabling legislation.

5. LA said that in case of disputes involving legal interests of concerned parties over whether an instrument was subsidiary legislation, the matter had to be adjudicated in court. On the way forward, LA said that members might wish to consider the following options -

1. To provide a clear legal definition of "subsidiary legislation". From a legal point of view, this could avoid disputes between the Administration and LegCo. In this connection, LA pointed out that a Legislative Instruments Bill was introduced in Australia in 1994 to deal with subsidiary legislation. Although the Bill had yet to be passed, this was a possible way for LegCo to consider; or

2. To support the Administration's proposal to include an express provision in new legislation to make it clear that a statutory instrument was subsidiary legislation and to deal with any disputes over interpretation of existing subsidiary legislation as it arose.

6. On the responsibility and mechanism for tabling of subsidiary legislation, LA advised members that section 34(1) of Cap. 1 did not specify the person responsible for tabling the subsidiary legislation. After discussion, the Subcommittee to study issues relating to the tabling of subsidiary legislation in Legislative Council held the view that the public officer or another authorized person who made the relevant subsidiary legislation should be responsible for its tabling. For the purpose of ensuring all the subsidiary legislation that needed to be tabled were tabled, the Subcommittee and the Administration agreed to put in place a new mechanism under which the Legal Supplement No. 2 of the Gazette would be divided into two parts; Part A would include items which were required to be tabled pursuant to section 34(1) of Cap. 1, while part B would include those which were not so required.

7. Ms Emily LAU opined that a clear definition of " subsidiary legislation" was necessary to facilitate LegCo in monitoring the making of subsidiary legislation. Mr Howard YOUNG said that new legislation should specify clearly whether a statutory instrument was subsidiary legislation.

8. Mr Martin LEE said that having regard to the difficulties encountered by the UK and Australia, it was indeed not easy to define " subsidiary legislation". Since the existing system had worked well, he suggested to deal with disputes only when they arose and put the problem aside for the time being. Having regard to the Administration's proposal to specify clearly in new legislation whether a statutory instrument was subsidiary legislation and the new arrangement to divide the Legal Supplement No. 2 into two parts, Dr YEUNG Sum agreed with Mr LEE's view. He suggested that the Director of Administration should be the gate keeper to ensure that statutory instruments which were subsidiary legislation would be expressly specified in new legislation and subject to negative vetting by LegCo.	Adm
9. LA said that the Legal Service Division would pay special attention to instruments published as general notices and in case of doubt, would follow up with the Administration. He also pointed out that there were at present over 1,000 pieces of subsidiary legislation made under various Ordinances. Some of these were by practice not regarded as subsidiary legislation. He suggested the Administration to consider putting in place a mechanism to review whether these instruments had legislative effect and should therefore be classified as subsidiary legislation on the basis of the tests elaborated in item (a) of the Administration's paper. D of Adm undertook to follow up with relevant bureaux on doubtful cases.	Adm
10. The Chairman said that LegCo and the Administration might have different views on whether an instrument was of administrative character or legislative character. He asked whether notices which were considered to be of administrative character by the Administration but made under the authority of an ordinance could also be published in a separate part of Legal Supplement No. 2, instead of the General part of the Gazette, to facilitate checking by LA. Deputy Law Officer (Civil Law) explained that the format of the Gazette was designed as a matter of convenience. The practice was that a notice which was subsidiary legislation would be placed at the end of the relevant principal ordinance, while general notices would not. D of Adm undertook to consider the Chairman's suggestion and give a written reply.	Adm

(Post-meeting note : The Administration's reply was issued to members vide LC Paper No. CB(2)2897/98-99)

IV. Arrangement arising from Articles 50 and 51 of the Basic Law
(LC Paper No. CB(2) 2558/98-99(03))

11. D of Adm said that on the issue of the interpretation of the word "budget" in Articles 50 and 51 of the Basic Law, the Administration was of the view that, taking into account the legal requirements governing the management of public finance and the established practices over the years in seeking the legislature's approval of expenditure, the term "budget" in the context of Articles 50 and 51 of the Basic Law referred to the expenditure side only (i.e. the Appropriation Bill). However, it should be noted that the term appeared in other Articles of the Basic Law where it might carry a wider meaning and the term should be interpreted in the context of each of the Basic Law articles in which it appeared. Members supported the interpretation in principle.

12. Mr Martin LEE said that if the Administration considered that the term "budget" in the context of Articles 50 and 51 referred to the Appropriation Bill, then the Revenue Bill could fall under "any other important bill introduced by the government" as stipulated in Article 50. The Administration agreed with Mr LEE's view.

13. In response to the Chairman, D of Adm explained that in the event that the "budget" under Article 50 was voted down by the LegCo, the Government was empowered by section 7(1) of the Public Finance Ordinance (PFO) to seek funds by means of a LegCo resolution in advance of an Appropriation Ordinance. It was therefore not necessary to make any legislative amendment to the PFO.

14. LA said that according to Article 50, if consultation was conducted and consensus was reached after the "budget" was voted down, it would be necessary to introduce the new "budget" into the LegCo. The new "budget" would likely contain provisions which were substantially the same as the original "budget". Under the circumstances, existing provisions of the Rules of Procedure of LegCo, such as Rule 32(2), which prohibited the moving in the same session of a motion related to a question which the Council had voted against, might affect the re-introduction of the Appropriation Bill. Since Article 51 provided for the Chief Executive to apply to the LegCo for provisional appropriations, members might wish to consider whether it was necessary to provide an exception under the Rules of Procedure to allow the re-introduction of the Appropriation Bill. The Chairman suggested and members agreed that the matter should be referred to the Committee on Rules of Procedure for consideration.

CRP

15. Members discussed whether "LegCo refuses to pass a budget … " referred to in Article 50 covered the situation where a bill was passed as amended. D of Adm said that she needed more time to consider the issue. LA held the view that a budget which was passed, albeit with substantial amendments, should not be regarded as having been rejected by LegCo. If the Chief Executive considered that a bill passed as amended was not compatible with the overall interests of the Region and refused to sign it, Articles 49 and 50 could be invoked. Members concluded that discussion on the detailed arrangements for implementation of Articles 50 and 51 should be left to the Committee on Rules of Procedure.

V. Mechanism for amending the Basic Law
(LC Paper No. CB(2) 2558/98-99(04))

16. Acting Secretary for Constitutional Affairs (SCA(Ag)) briefed members on the paper. He emphasized the following points :

1. The Administration was making steady progress in establishing a mechanism for amending the Basic Law. Over the past few months, the Administration had consolidated and analyzed the views expressed by various parties, conducted further study on the various issues, studied the experience of other countries on constitutional amendments and commenced discussion with the Hong Kong and Macau Affairs Office (HKMAO). As a result, both LegCo and the Administration had come to a better understanding of the procedures required for setting up a mechanism for amending the Basic Law;

2. Any proposals to amend the Basic Law was a matter of great importance which had to be thoroughly discussed and handled with prudence. This view was shared by the legal profession and academics. The Administration was committed to working out a mechanism for amending the Basic Law. Since many issues involving arrangements for the three parties (the Chief Executive, the LegCo and the local deputies to the National People's Congress (local NPC deputies)) were inter-related, it was necessary to seek views and clarification on some issues from the Central authorities. The Administration would be able to formulate proposals only after consulting the relevant parties; and

3. At the Panel meeting in June, the Administration had provided a rough estimate of time required for some of the steps involving the HKSAR. On other issues which involved other parties and therefore could not be resolved by the HKSAR alone, the Administration could not set a timetable unilaterally. The HKMAO had been asked to give views on the time required for the various steps and procedures and the various issues identified at the special meetings held in March. The Administration would report to the Panel when there was further progress on the matter.

17. Some members were disappointed at the reply given by the Administration. They said that the paper had failed to provide new information and the Administration had made little progress in devising a mechanism for amending the Basic Law. They criticized the Administration for applying double standards in implementing Articles 158 and 159 of the Basic Law. They expressed concern over the timetable and urged the Administration to come up with specific proposals for procedures governing the HKSAR.

18. In response, SCA(Ag) said that it was inappropriate to compare Article 158 concerning interpreting the Basic Law with Article 159 concerning amending the Basic Law, as they were two different issues. Legislative interpretation must be faithful to the original legislative intent while legislative amendment could go beyond that legislative intent.

19. Mr Martin LEE disagreed that it was inappropriate to compare Article 158 with Article 159, given that the Administration had earlier advised that either Article could be invoked in resolving the right of abode issue. He stressed that the Administration should not attempt to seek views from the Central Authorities on procedures in which the HKSAR had full autonomy. He also questioned the need to consult the Standing Committee of the National People's Congress (NPCSC) and the State Council on the matter.

20. SCA(Ag) responded that at the two Panel meetings in March, members had queried whether the NPCSC and the State Council should consult the HKSAR on their amendment proposal and whether the Basic Law Committee should consult the HKSAR before giving their views. Against this background, the Administration considered that the Central Authorities should be approached to clarify certain issues.

21. Mr Martin LEE said that the public should have the power to initiate a proposal to amend the Basic Law. One of the avenues for them to do so was through Members of the LegCo. Ms Emily LAU supplemented that at the two Panel meetings in March, some deputations had suggested that the public might initiate an amendment when a specified percentage of citizens had indicated support for the proposal. Some deputations had also suggested that the decision of an amendment should be left with the people through a referendum. She supported these views. SCA(Ag) responded that the Administration would consider these proposals as well as other effective channels though which the public could achieve the same purpose.

22. Mr CHENG Kai-nam asked whether the Administration had to seek views from the NPCSC rather than the local NPC deputies because the latter were answerable to the former. Ms Emily LAU said that the local NPC deputies were not rubber stamps and they should be consulted. SCA(Ag) advised that the General Office of NPCSC had last year issued a set of guidelines to local NPC deputies on, inter alia, how they should discharge their duties in Hong Kong under Article 159. It would therefore be appropriate for the Administration to exchange views with the NPCSC on this matter.

23. Mr Martin LEE said that the procedure for local NPC deputies discharging their duties under Article 159 was a matter for them to decide, and that the Administration should not go over their heads. He further said that LegCo should consider formulating a procedure for obtaining consent of two-thirds of all the Members of the LegCo as required in Article 159.

24. Dr YEUNG Sum asked LA whether LegCo could establish a mechanism for amending the Basic Law on its own, having regard to the slow progress made by the Administration. LA responded that Mr LEUNG Yiu-chung had earlier proposed to move a motion under Article 159 at a Council meeting and the President had given her approval for the motion to be included in the agenda. While it was legally and procedurally in order for a Member to introduce a resolution or a bill to amend the Basic Law under the Rules of Procedure, the practical question remained to be answered was how the matter should be taken forward if the resolution or the bill was carried by two-thirds of the LegCo Members. He said that the ideal situation was to establish a mechanism that was agreeable by all the relevant parties. It was for the same purpose that the House Committee had referred the subject to this Panel for follow up.

25. Dr YEUNG Sum held the view that the LegCo should come up with a proposal for consideration by the Administration and the local NPC deputies in order to expedite the process. Mr LEUNG Yiu-chung said that the Administration should be able to advise the Panel on the procedure to be adopted by the Administration in the event that a proposal for amending the Basic Law was passed by two-thirds of the LegCo Members. The Chairman added that the Administration must have already formulated an initial plan to tackle the possible passage of Mr LEUNG Yiu-chung's motion, given that the Chief Executive was obliged to respond to the amendment proposal within a reasonable time.

26. SCA(Ag) reiterated that many issues involving the three parties were interrelated and the Administration could not establish a mechanism unilaterally. He said that if a proposal for amending the Basic Law was passed by LegCo at this point in time, the question at issue would be how to handle the proposal. It remained that the best solution was for the Administration to propose a mechanism to give effect to Article 159 after consulting all the relevant parties. At this stage, the Administration had yet to form a view on the issue. It would report to the Panel when there was further progress.

27. The meeting ended at 4:30 pm.

Legislative Council Secretariat
6 October 1999