The Law-Making Process

Week 3

Prof. Kevin Cheng

 Introduction
 Last time, discussed about how HKSAR has a high degree
of autonomy, including the powers to make its own laws
 In addition, discussed about the separation of powers, and
how it is the role of the legislature to make laws
 How are laws made in Hong Kong?
 Authority to Create Legislation
 Article 66: “The Legislative Council of the Hong Kong Special
Administrative Region shall be the legislature of the Region”
 Article 73: The Legislative Council of the Hong Kong Special
Administrative Region shall exercise the following powers and
functions…1) To enact, amend or repeal laws in accordance with the
provisions of this Law and legal procedures
 Article 11: “No law enacted by the legislature of the Hong Kong Special
Administrative Region shall contravene this Law [Basic Law]”
 LegCo enact laws known as Ordinances
 Subsidiary legislation made by Chief Executive or to whom law-making
power in certain area is delegated under an Ordinance
 Why New Laws
 To create new law on a new subject
 To codify law
 To consolidate law
 To amend existing law
 The Proposal
 A proposition that a law should be created, amended or repealed
 Most come from government departments
 Also come from the Law Reform Commission
 http://www.hkreform.gov.hk/en/publications/subject.htm
 Even individual citizens, mainly through local organizations
such as District Councils or LegCo member
 Consultation
 Usually involve consultation papers for the proposed law
prepared by the governmental department concerned, Law
Reform Commission or other information papers
 Present information and get feedback from the public and
concerned groups
 The public and concerned group can make submissions within a
time frame
 http://www.2017.gov.hk/en/consult/highlights.html
 Bills
 A bill is a draft law and is prepared by the Law Drafting Division
 Two types of bills:
 Government bills – also known as public bills
 Members’ bills – introduced by legislative members that do not relate to
public expenditure, political structure or government operation
 The Government bill is then submitted to ExCo to cast a vote on
whether it should be presented to LegCo
 If accepted, a notice to present the bill to LegCo is sent to the Clerk to
the Council
 The bill and explanatory memorandum is published in the Gazette
 Every Member is then sent a copy of the bill with explanatory
memorandum
 Bills
 Members’ bills are drafted by the Member accompanied by a certificate
issued by the Law Draftsman
 For private bills, required to publish in two successive publications of
the Gazette and notice is required to be advertised in two daily
newspapers, one in English and the other in Chinese
 a "private bill" means a bill which provides primarily for the particular
interest or benefit of any individual, association or body corporate
rather than the interest or benefit of the public and is not a Government
measure (s.2 Private Bills Ordinance (Cap. 69))
 May also be sent to the Clerk to the Council who then forwards it to all
Members
 The President of the Council will rule on whether the bill can be
introduced
 Bills
 LegCo Rule 50: Requirement for the form of a bill
 Given a short title corresponding with the title by which it is to be cited if it
becomes law
 The bill shall be given a long title setting out the purposes of the bill in
general terms
 Bill should be presented in English and Chinese
 Present the enacting formula e.g. Enacted by the Legislative Council of
Hong Kong
 The bill should be divided into numbered clauses and have descriptive
heading
 Attach an explanatory memorandum stating its contents and objects in a
non-technical language
 http://www.legco.gov.hk/yr06-07/english/bc/bc51/general/bc51.htm
 Three Readings
 First Reading:
 A formal introduction of the bill into Council
 Nothing more than the Clerk reading out the title
 Purpose is to signify the commencement of the legislative process

 Second Reading:
 Immediately follows the First Reading
 The public officer or Member gives a speech explaining the main
purpose of the legislation
 Debate is normally adjourned with the bill referred to the House
Committee for scrutiny
 Three Readings
 The House Committee decides whether a Bills Committee should be
formed to scrutinize and consider amendments to the bill
 All Members, except the President, may join the Bills Committee –
varies from three members to a few dozen
 Only 15 Members may be in operation at any one time
 Then reports to the House Committee
 Advises on whether it supports the resumption of the Second Reading
 In the resumed debate, the Bills Committee gives its views
 Other Members may also speak on the bill
 A vote is taken on the motion on Second Reading; if passed, the Bills
Committee and/or Individual Members and/or public officer may move
their own amendments
 Three Readings
 After the bill is passed through with or without amendments

 Third Reading:
 Members have an opportunity to still speak about the bill
 Amendments to correct errors may still be made, but not to material content
 If Members vote in favor of the motion on Third Reading, the bill completes
its passage in the Council
 Bills introduced by the Government requires a simple majority vote of the
Members present by a show of hands
 For Members’ bills, requires a simple majority vote of Members returned by
functional constituencies and geographical constituencies
 See Annex II, Basic Law
 Promulgation
 A bill passed by Council may only take effect after it is signed
and promulgated by the Chief Executive (Art 76, Basic Law)
 The CE considers whether the bill is compatible with the overall
interests of HKSAR
 If not, he may return the bill to Council within three months for
reconsideration
 If original bill is still passed by not less than 2/3 majority, the CE
must sign and promulgate within one month
 If no consensus is reached, the CE may dissolve the Council (Art
49 & 50, Basic Law)
 If signed and promulgated by the CE, the law is published in the
Supplement No. 1 of the Gazette and comes into force
 NPCSC
 Laws must be reported to the NPCSC for the record (Art 17, Basic
Law)
 If NPCSC after consultation with the Committee or the Basic
Law of HKSAR considers the law is not in conformity with the
Basic Law, it may return the law but shall not amend it
 The returned law shall immediately be invalidated
 Loose-leaf and BLIS
 In Gazette, legislation is published in chronological order as it is
made
 Legislation is also published in consolidated form called Loose-
leaf Edition
 Also an electronic database called the Bilingual Laws
Information System (BLIS)
 Still the Gazette and Loose-leaf versions of legislation are
considered the official versions
 Subsidiary Legislation
 Rules, regulations and bylaws
 Purpose is to command obedience and guide behaviour
 Derives from the parent ordinance
 E.g. MTR by-laws
 http://www.legislation.gov.hk/blis_pdf.nsf
 s. 8, Basic Law: “The laws previously in force in Hong Kong, that
is, the common law, rules of equity, ordinances, subordinate
legislation and customary law shall be maintained, except for
any that contravene this Law, and subject to any amendment by
the legislature of the Hong Kong Special Administrative Region”
 Subsidiary Legislation
 Two alternative procedures where subsidiary legislation may be
approved by the Council
 Negative vetting – the subsidiary legislation laid on the table for
the Council after it has been published in the Gazette
 Council may amend it by resolution at a meeting held not later
than 28 days ; period for amendment may be extended
 (s.34, Interpretation and General Clauses Ordinance)
 Positive vetting – a public officer will move a motion to seek
Council’s approval
 Council may approve/reject or propose amendments
 (s.35, Interpretation and General Clauses Ordinance)
 Legislative Drafter
 Legislative drafter – lawyer who specializes and is trained in the
principles and techniques of drafting legislation
 Counsels employed by the Law Drafting Division of the Department of
Justice
 Provide legislative drafting services to the Government
 Any Bill presented by a LegCo member must be accompanied by a
certificate signed by the Law Draftsman (head of LDD)
 Advise on legal issues and assist on the legislative process; attend the
meetings of both ExCo and LegCo
 Conceptual aspect – ascertains and perfects the concepts employed
 Literary aspect – best means of expressing those concepts
 Plain Language
 Goal is to make the law as simple and clear as possible
 Organize the legislation logically
 One topic per clause; one idea per sub-clause
 Generally, keep the clause to a maximum of sic sub-clauses
 Use short sentences and words
 Avoid jargon and unfamiliar words
 Use the positive as opposed to the negative
 Avoid cross-referencing
 Use gender-neutral words

Drafting Legislation in Hong Kong: A Guide to Styles and Practices

 Plain Language
 Instead of:
 The Commissioner must give a copy of his report under this subsection
to the Secretary.
 Consider:
 The Commissioner must give a copy of the report under this subsection
to the Secretary.

Drafting Legislation in Hong Kong: A Guide to Styles and Practices

 Plain Language
 Instead of:
 The Board may renew the registration if the social worker makes an
application to the Board therefor.
 If the Board rejects the application the Board must notify the applicant
of the reasons therefor.
 Consider:
 The Board may renew the registration if the social worker makes an
application for renewal to the Board.
 If the Board rejects the application the Board must notify the applicant
of the reasons [for the rejection].
Drafting Legislation in Hong Kong: A Guide to Styles and Practices
 Drafting Offences
 The prohibited act or omission or course of conduct must be
stated with clarity and precision
 The breach of the act/omission/action should be declared as an
offence
 A punishment should be specified
 In most cases, should contain a physical element (actus reus)
and mental element (mens rea)

Drafting Legislation in Hong Kong: A Guide to Styles and Practices

 Conclusion
 HK is vested with law-making autonomy
 Perceive LegCo as the law-making body but other parts of
Government, including public officials and the CE play
important roles
 Many stages for a law to be made and come into effect

 Next time…
 Protection of rights in Hong Kong