Chapter 2

The Legislative Council

2.1Under the political structure set out in Chapter IV of the Basic Law of the HKSAR, the Chief Executive is the head of the HKSAR. He is also the head of the Government ^[1] which is the executive authorities of the HKSAR ^[2]. The Legislative Council is the legislature ^[3]. The courts at all levels form the judiciary, exercising the judicial power of the HKSAR^[4]. This Chapter outlines the powers and functions of the Legislative Council, privileges of the legislature in Hong Kong and its historical development, immunities enjoyed by Members of the Council, the composition of the Legislative Council and its development since the establishment of the HKSAR, adjournment and prorogation of the Council, sessions and breaks, and the roles of officers of the Council.

Powers and functions of the Legislative Council

2.2The powers and functions of the Legislative Council are set out in Article 73 of the Basic Law. The Legislative Council, as an institution, puts in place procedures and mechanisms to facilitate the performance of its powers and functions. Article 75 of the Basic Law gives the Council the power to make rules of procedure on its own, subject to the proviso that the rules do not contravene the Basic Law. This Chapter explains what the Basic Law says about these powers and functions of the Legislative Council, how they are performed within the framework of the Rules of Procedure and how the courts have interpreted the relevant articles in the Basic Law in the various judicial review cases where the powers and functions of the Council have been the subjects of challenges before the courts. Further details of procedures and mechanisms of the Council are given in other chapters where relevant.

2.3Article 73 of the Basic Law provides that the Legislative Council of the HKSAR shall exercise the following powers and functions:

(1)To enact, amend or repeal laws in accordance with the provisions of this [Basic] Law and legal procedures;

(2)To examine and approve budgets introduced by the government;

(3)To approve taxation and public expenditure;

(4)To receive and debate the policy addresses of the Chief Executive;

(5)To raise questions on the work of the government;

(6)To debate any issue concerning public interests;

(7)To endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court;

(8)To receive and handle complaints from Hong Kong residents;

(9)If a motion initiated jointly by one-fourth of all the members of the Legislative Council charges the Chief Executive with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee. The committee shall be responsible for carrying out the investigation and reporting its findings to the Council. If the committee considers the evidence sufficient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the Central People's Government for decision; and

(10)To summon, as required when exercising the above-mentioned powers and functions, persons concerned to testify or give evidence.

Making of laws

2.4The enactment of law is one of the primary powers and functions of the Legislative Council. This power and function includes passing new laws,

and amending or repealing existing laws, and these laws include principal ordinances and subsidiary legislation. The extent of power given to the Legislative Council to "enact, amend or repeal laws" must be read with other relevant provisions in the Basic Law, where the responsibilities for the making of law have also been stipulated. Under the Basic Law, the Government of the HKSAR has the power and function to draft and introduce bills, motions and subordinate legislation.^[5] Before introducing bills to the Legislative Council or making subsidiary legislation, the Chief Executive is required to consult the Executive Council.^[6] After a bill is passed in the Legislative Council, the Chief Executive has the power and function of signing the bill and promulgating it, and that completes the enactment process. The power and function of the Legislative Council in the law-making process is in the examination of the legislative proposal, be it a bill or subsidiary legislation, and the amendment ^[7] and passage of it.

2.5For performing this power and function, the Legislative Council has adopted formal procedural rules to govern the proceedings on bills and subsidiary legislation. These procedural rules set out in the Rules of Procedures have been recognized by the Court as the "legal procedures" referred to in Article 73(1) of the Basic Law.^[8] In the Rules of Procedure, the Legislative Council has put in place a mechanism which allows the Council to fully deliberate a legislative proposal before passing it into law. Individual Members should also be able to propose amendments to the proposal subject to the restrictions laid down in the Rules of Procedure. Within the boundary of its Rules of Procedure and its body of precedents, the Legislative Council has complete autonomy in performing its law-making function, subject always to compliance with the Basic Law.

2.6Under the Basic Law, the law-making power of the HKSAR legislature is a substantive power. The Chief Executive is required to sign the bills passed by the Legislative Council. If he considers a bill passed by the Legislative Council is not compatible with the overall interests of the Region, he may return it to the Legislative Council for reconsideration. If he refuses to sign a bill passed the second time by the Legislative Council, he may dissolve the Council. If the newly returned Legislative Council again passes by a two-thirds majority of all its Members the original bill in dispute, the Chief Executive is required to sign the bill or he must resign.^[9] This law-making power is in substance different from that enjoyed by the pre-1997 Legislative Council whose constitutional role was to provide advice on, and give consent to, bills which the Governor then enacted into law in exercise of the law-making power conferred on him under the Letters Patent. A bill passed by the Legislative Council was required to be presented to the Governor who might assent or refuse to assent to the bill or reserve it for the Crown's signification.^{[10] [11]}

2.7The reserved power of the NPC in respect of the laws enacted by the HKSAR legislature only applies to those laws considered by the Standing Committee of the NPC not to be in conformity with the provisions of the Basic Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the HKSAR.^[12] In these circumstances, the Standing Committee may return the law in question back to the HKSAR but shall not amend it. Any law returned will immediately be invalidated but such invalidation will not have retrospective effect unless otherwise provided under the Basic Law.

2.8Apart from the Government which may introduce bills and subsidiary legislation to the Legislative Council, individual Members of the Council, either individually or jointly, may also introduce bills but subject to the restrictions laid down in Article 74 of the Basic Law. Members may introduce bills which do not relate to public expenditure or political structure or the operation of the government. For bills relating to government policies, prior written consent of the Chief Executive is required. In the pre-1997 Legislature, the restriction was only limited to legislative proposals seeking to "dispose of or charge any part of the revenue or other public moneys of Hong Kong" (generally known as a proposal with "charging effect") unless prior permission had been obtained from the Governor.

2.9There have been questions about the applicability of Article 74 of the Basic Law to motions and amendments to motions and amendments to bills. The view of the Legislative Council, which has been maintained up to this date, is that Article 74 only applies to "bills" initiated by Members; motions and amendments do not fall within the meaning of "bills" in the context of Article 74. Nevertheless, to uphold the principle that any proposal with charging effect should only be introduced on the initiative or with the authorization of the Government^[13], the Legislative Council has laid down such restrictions in its Rules of Procedure to act in the nature of self-imposed limitations, such as Rule 31 of the Rules of Procedure ^[14]. The Government maintained that "bills" include motions and amendments. After lengthy argument in 1998-1999, both the Government and the Legislature maintained their original position. However, the Government so far has not challenged the President for allowing motions or amendments to be placed on the Agenda of the Council on the ground that they are caught by Article 74, and would only do so if it considered them to have a charging effect.

Approval of budgets, taxation and public expenditure

2.10Regarding the Legislative Council's power and function to approve budgets, taxation and public expenditure, it should be noted that under the Basic Law it is the Government's power and function to draw up and introduce budgets^[15], and the Chief Executive's to approve the introduction of motions regarding revenues or expenditure to the Legislative Council.^[16] The role of the Legislative Council is to examine and decide whether to approve the proposals put before it. Proposals to incur public expenditure and to raise taxation and charges on the people can only be initiated by the Government. This is a principle which has been followed in the administration of Hong Kong since 1843 and is reflected in various provisions in the Basic Law, such as Articles 62(4), 73 and 74, and the Public Finance Ordinance (Cap. 2).

2.11The Legislative Council has also put in place procedural rules to examine and approve the annual budget which is presented to the Legislative Council in the form of an Appropriation Bill. These are set out in Part L of the Rules of Procedure which was also modelled on a similar part in the Standing Orders of the pre-1997 Legislature.

Monitoring the work of the Government

2.12The Legislative Council's powers and functions to receive and debate the policy addresses of the Chief Executive, raise questions on the work of the Government, debate issues concerning public interests and receive and handle public complaints exist to provide checks and balances to the powers and functions given to the Chief Executive and the Government under the Basic Law. Under Article 64, the Government of the HKSAR is required to be accountable to the Legislative Council. The relationship between the legislature and the executive authorities has been described as a "relationship of regulating and coordinating" by Mr Ji Pengfei^[17] in his explanation of the political structure in his address at the Seventh NPC on 28 March 1990 when he proposed the adoption of the Basic Law of the HKSAR. By providing the Legislative Council with the power and function to move and pass a motion of impeachment against the Chief Executive for serious breach of law or dereliction of duty, if found substantiated by an independent investigation committee chaired by the Chief Justice, by a two-thirds majority, the Legislative Council is in a position to hold the Chief Executive personally responsible for his conduct and performance of duty by reporting the impeachment motion to the Central People's Government.

Endorsement of appointment and removal of senior judges

2.13The endorsement of the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court under Article 73(7) of the Basic Law is a power and function which did not exist in the pre-1997 Legislature. The Hong Kong Legislature has provided rules in its Rules of Procedure to avoid any interference, or appearance of interference, with the working of the judiciary which might undermine the principle of independence of the judiciary. For example, the Rules of Procedure provide that Members should refrain from speaking at the Council or its committees on any matter which relates to a case pending in a court of law or ask questions that reflect on the decision of a court.^[18] To enable the Council to perform this new function effectively, the House Committee^[19] has adopted a mechanism to enable the examination of the recommendations on the appointment or removal of these senior judges by a subcommittee of the House Committee. The mechanism should ensure that there is transparency and accountability in the process of examination and deliberation and Members are provided with as much information as possible about the candidates for consideration.

Power to order attendance of witnesses

2.14Article 73(10) of the Basic Law empowers the Legislative Council to summon witnesses to testify or give evidence in the exercise of all the powers and functions of the Legislative Council listed in Article 73(1) to (9). This power to summon witnesses, which is regarded as "a fundamental parliamentary right of the highest importance" ^[20], is reflected in Section 9 of the Legislative Council (Powers and Privileges) Ordinance which will be further elaborated in the context of privileges and immunities of the Legislative Council in this Chapter below.

Privileges and Immunities of the Legislative Council

Privileges of the Legislature under the common law

2.15According to Erskine May, parliamentary privilege under the common law may be defined as the sum of certain rights enjoyed by the legislative body collectively, and by Members individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.^[21] In the UK, some privileges rest solely on the law and customs of Parliament, while others have been defined by statute.

2.16In Hong Kong, certain rights and immunities such as freedom of speech or freedom from arrest belong primarily to individual Members because the Legislature cannot perform its functions without the unimpeded service of its Members. Other rights such as the regulation of admittance to and conduct within the precincts, the order of witnesses giving evidence, etc. belong to the Legislature as a collective body. On 15 May 1985, while introducing the Legislative Council (Powers and Privileges) Bill, the then Chief Secretary explained the privileges enjoyed by Members as they existed in the pre-1997 Legislature in the following manner:

"Traditionally, the main privileges enjoyed by Members of Parliament in Westminster are as follows:

(1)the privilege of statements made in debate in Parliament, protecting members from any action in the courts for defamation arising out of anything said in debate;

(2)freedom from arrest, providing members with immunity from arrest anywhere at any time during a session in any civil cause, and protection from arrest within the precincts of the House, while the House is sitting, in a civil or criminal matter, without the leave of the House;

(3)exemption from jury service; and

(4)exemption from attending any court as a witness.

Although the legislature of a Crown colony does not, by its mere establishment, acquire all these powers, privileges and immunities, the existing body of law in Hong Kong (principally U.K. case law which applies in Hong Kong under the common law system) the Jury Ordinance and other administrative practices in fact confer all these powers and privileges on Members of this Council." ^[22]

2.17In May 1985, following the signing of the Joint Declaration in December 1984, the Hong Kong Government considered it desirable to enact legislation to codify the powers and privileges enjoyed by Members of the Hong Kong Legislature since any inherent powers and privileges derived from the status of the Legislative Council as a colonial legislature would cease to have effect in Hong Kong after 1997. With the political system in Hong Kong moving towards representative government, the Government also considered it desirable specifically to provide for the rights of Members and for the powers and privileges through which the Legislative Council managed its business to be clearly understood, including the power of its committees to summon witnesses to give evidence.^[23]

2.18The Legislative Council (Powers and Privileges) Bill was passed into law in July 1985. The Ordinance (referred to as the "Powers and Privileges Ordinance" in this Chapter) declares and defines certain powers, privileges and immunities of the Legislative Council and its members and officers to facilitate the performance of their parliamentary duties. Most of the provisions in the Ordinance are derived from common law and parliamentary practice in the UK relating to the privileges and immunities of a legislative body and its members, such as freedom of speech and debate in the Council and its committees, immunity from civil or criminal proceedings for words spoken before, or written in a report to, the Council or a committee, freedom from arrest, and exemption from serving as a witness or a juror on a day when the Council is sitting.^{[24] [25]}

2.19The Powers and Privileges Ordinance^[26] also empowers the Legislative Council and standing committees to order witnesses to attend and to produce books and documents, and enables the same power to be given to any other committee by resolution of the Council. It also empowers the Legislative Council to decide on the extent of access to the precincts of the Chamber by members of the press and the public, and empowers the President, for the purpose of maintaining the security of the precincts of the Chamber and other administrative purposes, to issue administrative instructions to ensure the proper behaviour and decorum of persons within the precincts of the Chamber.

2.20The Powers and Privileges Ordinance also makes it clear that the Council, the President or any officer of the Council shall not be subject to the jurisdiction of any court in respect of the lawful exercise of any power conferred on or vested in the Council, the President or such officer by or under the Ordinance or the Rules of Procedure.^[27]

The Legislative Council's power to summon witnesses

2.21The constitutional power of the Legislative Council to summon witnesses to testify and give evidence is provided for in Article 73(10) of the Basic Law for exercise of all the powers and functions of the Legislative Council listed in Article 73(1) to (9). Article 48(11) also provides that the Chief Executive may decide, in the light of security and vital public interests, whether Government officials or other personnel in charge of Government affairs should testify or give evidence before the Legislative Council or its committees.

2.22The power to summon witnesses is usually required when the Council or a committee considers it necessary to inquire into a matter which has caused wide public concern. The manner in which the Legislative Council exercises its power to summon witnesses is set out in the Powers and Privileges Ordinance, supplemented by the Rules of Procedure and the practice and procedures established by the committees which exercise such power. The provisions relating to the ordering of witnesses in the Powers and Privileges Ordinance were based on what was originally provided for in Section 4 of the Oaths and Declarations Ordinance (Cap. 11), common law and parliamentary practice in the UK. The Ordinance also includes provisions which were not clearly provided for elsewhere, such as the protection of individual witnesses lawfully ordered to appear before the Legislative Council or its committees. This protection includes a witness's entitlement to the same rights or privilege as before a court of law^[28], and prohibition of the use of evidence against the witness or the spouse of a witness in criminal proceedings and proceedings for the recovery of a penalty^[29].

2.23The Powers and Privileges Ordinance empowers the President of the Legislative Council to allow a witness to be excused from answering a question or producing any book, record or document on the ground that it is of a private nature and does not affect the subject of the inquiry. If he considers that the question asked or the book, record or document ordered for production is not relevant to the subject matter of the inquiry the President must excuse that witness. This power is not based on common law or parliamentary practice in the UK, but is provided to facilitate the conduct of the business of the Council. The Ordinance has made it clear that the powers conferred on the President by it in this Ordinance are supplementary to any powers conferred on him by the Basic Law.^[30]

2.24In the extension of the Legislative Council's power to summon witnesses to its committees, section 9(1) of the Powers and Privileges Ordinance provides the standing committee with such power. Section 9(2) provides that this power may also be exercised by any other committee which is specially authorized by a resolution of the Council to exercise such powers in respect of any matter or question specified in the resolution. Originally, the "other committee" mentioned in section 9(2) of the Ordinance referred only to select committees since in 1985 only standing committees and select committees existed in the Legislative Council. It was only after the House Committee and Bills Committee became committees of the Council in 1992, and Panels became committees of the Council in 1993, that these committees could also exercise the power to order witnesses if authorized by the Council. The Ordinance was amended in 1994 to enable "a subcommittee of any committee" to be included in the meaning of "committees". These provisions are also reflected in Rule 80 of the Rules of Procedure.

2.25To ensure the proper exercise of its power to summon witnesses the Legislative Council has put in place detailed procedural rules governing the conduct of hearings for the purpose of obtaining evidence from witnesses. The procedure of select committees set out in Rule 79 of the Rules of Procedure originally was to cater for proceedings where witnesses were called and evidence was obtained and examined. As this process may also take place in other committees if so authorized by the Council, it has been the practice that each committee authorized to summon witnesses also draws up its practice and procedures based on Rule 79 and other procedural arrangements adopted by previous committees conducting inquiries. Committees undertaking an inquiry take great care in handling the evidence obtained from witnesses especially during closed meetings. Any member of the committee who prematurely publishes any evidence taken by the committee or documents presented to it may be admonished or reprimanded by the Council.^[31]

2.26The Legislative Council has absolute control over its records of proceedings, minutes, reports and publications. Where any contents of minutes, records of evidence or any document laid before the Council or a committee or subcommittee or in respect of any of their proceedings are to be used as evidence elsewhere, leave must be sought from the Council in accordance with section 7 of the Powers and Privileges Ordinance and the procedure set out in Rule 90 of the Rules of Procedure.

2.27A legal challenge was brought before the High Court in 2009 in respect of a select committee's power to summon witnesses^[32]. The applicants for judicial review were witnesses summoned to appear before a select committee of the Legislative Council to give evidence. They considered that only the Legislative Council itself had the power to summon witnesses under Article 73(10) of the Basic Law. Accordingly they challenged the legality of the witness summonses approved for issue by the President of the Legislative Council following an order made by the select committee. The Court dismissed the application and held that on a true construction of Article 73(10) of the Basic Law, the Legislative Council, in exercising its functions as set out in Article 73(1) to (9), is empowered to summon persons concerned to testify or to give evidence, when sitting as a full body or when functioning through a select committee.

Control over the precincts of the Chamber

2.28The Powers and Privileges Ordinance provides that sittings of the Council shall be open to the public^[33], and the rights of persons to enter or remain in the precincts of the Chamber shall be subject to the Rules of Procedure or any resolution of the Council limiting or prohibiting the enjoyment of such right. In this respect the Rules of Procedure allow the admission of members of the press and of the public as observers of the meetings of the Council, and at the same time provide the President and chairmen of committees with power to order the removal of any member of the press and of the public who behaves or appears to behave in a disorderly manner.^[34] In July 1992, under section 8(3) of the Ordinance, the President issued the first set of "Administrative Instructions for Regulating Admittance and Conduct of Persons", which have since been included as Cap. 382A in the Laws of Hong Kong. The Administrative Instructions set out the restrictions on access to areas reserved for Members and officers of the Council, restrictions on baggage which can be carried into the precincts, the requirement for orderly behaviour within the precincts, and conduct and restrictions in the press and public galleries.^[35]

Freedom of speech

2.29Freedom of speech is the fundamental right of a member of a legislature. It is regarded as the most fundamental privilege in all modern parliaments. Article 77 of the Basic Law provides that Members of the Legislative Council shall be immune from legal action in respect of their statements at meetings of the Council. The Powers and Privileges Ordinance provides specifically that there shall be freedom of speech and debate in the Council or proceedings before a committee, and such freedom of speech and debate shall not be liable to be questioned in any court of place outside the Council^[36]. The Ordinance further provides that no civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to, the Council or a committee, or through any petition, bill, resolution or motion brought by him.^[37]

2.30Despite the freedom of speech given to Members under the Basic Law and the Powers and Privileges Ordinance, it does not mean that in practice Members have an unlimited or unrestrained right to speak on any matter before the Council or a committee. Members' speeches in the Council are still subject to the Rules of Procedure of the Legislative Council which provide specific rules on time and manner of speaking, contents of speeches, conduct of Members speaking, etc. These rules and practices are important to ensure the effective and orderly transaction of business in the Council and its committees. It is the duty of the President or any chairman of any committee to ensure the observance of the rules of order in the Council and committee respectively under Rule 44 of the Rules of Procedure and, as a general principle, to ensure that no Member, including any Member in the minority, is deprived of a fair chance to speak in the proceedings of the Council or committee.

Freedom from arrest

2.31Article 78 of the Basic Law provides that Members of the Legislative Council shall not be subjected to arrest when attending or on their way to a meeting of the Council. In this respect, the Powers and Privileges Ordinance provides that no Member shall be liable to arrest for any civil debt (except one which constitutes a criminal offence) whilst going to, attending at or returning from a meeting of the Council or a committee; or for any criminal offence whilst attending a meeting of the Council or a committee.^[38] The Ordinance also provides that no process issued by any court in Hong Kong or elsewhere in the exercise of its civil jurisdiction shall be served or executed on Members within the precincts of the Chamber while the Council is sitting.^[39]

Exemption from jury service

2.32The exemption of Members from jury service by virtue of section 5 of the Jury Ordinance (Cap. 3) is reflected in the Powers and Privileges Ordinance^[40].

Exemption from attendance as a witness in civil proceedings

2.33The Powers and Privileges Ordinance provides that except by leave of the Council obtained in accordance with the Rules of Procedure, a Member shall not be required to attend as a witness in any civil proceedings on a day when the Council is sitting.^[41] For implementing this provision, a procedure is provided in Rule 89 of the Rules of Procedure to enable a Member to obtain leave to attend as a witness in civil proceedings.

2.34According to Rule 89 of the Rules of Procedure, the party to the proceedings requiring a Member to attend on a day when the Council is meeting shall submit a written statement to the Clerk to the Legislative Council not later then 21 days before the day of attendance. The written statement should contain the reasons why the attendance of the Member is required on that day. This request for leave shall be placed on the Agenda for the meeting next following the receipt of the written statement by the Clerk and, unless a motion is moved without notice at that meeting by any Member for the leave to be refused, the Council shall be deemed to have ordered that the leave be granted. The Clerk shall then inform the party concerned and the Member of the decision of the Council in writing.

Interfering with Members, officers or witnesses

2.35Section 19 of the Powers and Privileges Ordinance also provides that any person who assaults, obstructs or molests any Member of the Legislative Council who is on the way to, or inside or leaving the precincts of the Chamber, or endeavours to compel any Member by force or menace to declare himself in favour of or against any motion or matters pending before the Council or a committee commits an offence. The "person" referred to in this provision can be any person including a Member of the Council or a designated public officer. The maximum penalty is a fine of $10,000 or imprisonment for 12 months. The same penalty also applies if the target of interference is an officer of the Council while in the execution of duty or a witness before or after giving evidence to the Council or a committee.

Prosecution for an offence under the Powers and Privilege Ordinance

2.36Under section 26 of the Powers and Privileges Ordinance, no prosecution for an offence under the Ordinance shall be instituted except with the consent of the Secretary for Justice.

Composition of the Legislative Council

2.37The composition of the Legislative Council is not specified in the main text of the Basic Law, but Article 68 provides that it shall be constituted by election and the method for its forming shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress, with the ultimate aim being the election of all the members of the Legislative Council by universal suffrage.

2.38The specific method for forming the Legislative Council is prescribed in Annex II to the Basic Law. Annex II provides that the Legislative Council shall be composed of 60 members in each term for the first three terms. The procedure to amend Annex II is set out in the Basic Law and the Interpretation of Article II of Annex II adopted by the Standing Committee of the NPC at the Eighth Session of the Standing Committee of the Tenth NPC on 6 April 2004 ^[42], summarized as follows:

-First, the Chief Executive shall make a report to the Standing Committee of the NPC as regards whether there is a need to make an amendment;

-In response to the report, the Standing Committee of the NPC shall, in accordance with the provisions of Article 68 of the Basic Law, make a determination in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress;

-If the determination is in the affirmative, the bill on the proposed amendment to the method for forming the Legislative Council and the proposed amendments to such a bill shall be introduced by the HKSAR Government into the Legislative Council;

-In the Legislative Council, the bill will require the support of a two-thirds majority of all the members of the Legislative Council for it to be passed;

-For such a bill so passed to have effect, it must be reported to the Standing Committee of the NPC for the record with the consent of the Chief Executive.

Formation of the First Legislative Council (1998-2000)

2.39For the first term, the Legislative Council was formed in accordance with the Decision of the NPC of the People's Republic of China on the Method for the Formation of the First Government and the First Legislative Council of HKSAR^[43]. At the Third Session of the Seventh NPC on 4 April 1990, it was decided that the First Legislative Council of the HKSAR should be composed of 60 Members, with 20 Members returned by geographical constituencies through direct elections, 10 Members returned by an election committee^[44], and 30 Members returned by functional constituencies. More information about these electoral systems is provided in Chapter 3.

2.40The Legislative Council Ordinance (Cap. 542) which provided for the election of the First Legislative Council was passed by the Provisional Legislative Council on 28 September 1997. On 8 April 1998, the Provisional Legislative Council, which met for the first time in Shenzhen on 25 January 1997 and commenced operation in Hong Kong on 1 July 1997, was prorogued to enable the general election for the First Legislative Council to be held. The term of the Provisional Legislative Council ended on 30 June 1998.

2.41On 24 May 1998, the election of the Members of the First Legislative Council of the HKSAR was held. In accordance with the Basic Law, the term of the First Legislative Council was 2 years, from 1 July 1998 to 30 June 2000.

Formation of the Second Legislative Council (2000-2004)

2.42For the second term, Annex II to the Basic Law provided that the Members returned by the Election Committee be reduced to 6 while the Members returned by geographical constituencies through direct elections be increased to 24. Together with the 30 Members returned from functional constituencies, the number of Members of the Legislative Council remained at 60. On 9 July 2000, the subsectors elections of the Election Committee were held and a new 800-member Election Committee was formed with a term of office of five years. Members of this Election Committee also elected the Chief Executive in 2002 as provided for in Annex I to the Basic Law.

2.43The election of Members of the Second Legislative Council was held on 10 September 2000. The term of the Second Legislative Council commenced on 1 October 2000 and ended on 30 September 2004.

Formation of the Third Legislative Council (2004-2008)

2.44For the third term, Annex II to the Basic Law further provided that the number of Members returned by geographical constituencies was to be increased to 30, the same as the number of Members returned from functional constituencies. Total membership remained at 60.

2.45The election of Members of the Third Legislative Council was held on 12 September 2004. The term of the Third Legislative Council commenced on 1 October 2004 and ended on 30 September 2008.

Formation of the Fourth Legislative Council (2008-2012)

2.46The composition of the Fourth Legislative Council was not provided for in Annex II to the Basic Law. In accordance with the procedure set out in the Interpretation adopted by the Standing Committee of the NPC on 6 April 2004, the Chief Executive made a report to the Standing Committee on 15 April 2004 to propose amendments to Annexes I and II to the Basic Law to implement a package of proposals for the methods of selecting the Chief Executive in 2007 and forming the Legislative Council in 2008. On 26 April 2004, the Standing Committee decided that the election of the third term Chief Executive to be held in 2007 should not be by means of universal suffrage (Appendix 2-A); the election of the Fourth Legislative Council in 2008 should not be by means of an election of all the members by universal suffrage; and the ratio between members returned by functional constituencies

and members returned by geographical constituencies through direct elections, who should respectively occupy half of the seats, was to remain unchanged. However, the two electoral methods might be amended appropriately, provided that the amendments did not contravene its decision and were consistent with Articles 45 and 68 of the Basic Law, and provisions of Annex I and Annex II to the Basic Law.

2.47On 19 October 2005, pursuant to the decision of the Standing Committee made on 26 April 2004, the Government published a report^[45] on its package of proposals. On 21 December 2005, the Government put to the Legislative Council two motions to amend Annexes I and II to the Basic Law respectively to implement the package of proposals.

2.48Regarding the motion to amend Annex II to the Basic Law, the Government proposed increasing the number of Legislative Council Members to 70 with 35 from each of the two groups of constituencies. For the additional 5 seats in functional constituencies, the Government proposed that they should be returned through election by all District Council members elected from among themselves. The proposal was studied by a subcommittee of the House Committee which found that members were divided over the proposed package. While some members did not consider the package progressive enough and would not bring Hong Kong any nearer to the ultimate aim of universal suffrage, some held the view that it did expand the democratic elements in the electoral system and would help Hong Kong's constitutional development step towards the ultimate aim of universal suffrage in a gradual and orderly manner. There was also objection to the proposal of including the appointed District Board members in returning the 5 new seats in functional constituencies. These views were further reflected in the speeches of Members at the debate on 21 December 2005. At the conclusion, the motion did not receive the required two-thirds majority support of Members of the Council.

2.49In accordance with the Interpretation made by the Standing Committee of the National People’s Congress on 6 April 2004, if no amendment is made to the methods for selecting the Chief Executive and for forming the Legislative Council as stipulated in Annexes I and II to the Basic Law, the provisions relating to the two methods in Annexes I and II to the Basic Law would continue to apply. The composition of the Fourth Legislative Council therefore remained the same as that of the Third Legislative Council, i.e. 60 Members with 30 Members returned from functional constituencies and 30 from geographical constituencies through direct elections.

2.50The election of Members of the Fourth Legislative Council was held on 7 September 2008. The term of the Fourth Legislative Council commenced on 1 October 2008 and ended on 30 September 2012.

Formation of the Fifth Legislative Council (2012-2016)

2.51In respect of the method of election of the Chief Executive and the formation of the Legislative Council for the year 2012, the Chief Executive submitted a Report to the Standing Committee of the NPC on 12 December 2007. In his Report, in respect of the models for forming the Legislative Council, the Chief Executive stated that consensus had begun to emerge on taking forward universal suffrage in the direction of implementation for the Chief Executive first, to be followed by that for the Legislative Council, and that setting the timetable for implementing universal suffrage could help promote the ultimate resolution of the issues involved. The Standing Committee deliberated on the Chief Executive's Report and decided on 29 December 2007 that the election of the Fifth Legislative Council should not be implemented by the method of electing all the members by universal suffrage (Appendix 2-B). The half-and-half ratio between Members returned by functional constituencies and Members returned by geographical constituencies through direct elections should remain unchanged. The procedure for voting on bills and motions in the Legislative Council should remain unchanged. Subject to the aforementioned, appropriate amendments conforming to the principle of gradual and orderly progress might be made to the specific method for forming the Fifth Legislative Council in 2012.

2.52The subject was followed up by the Legislative Council Panel on Constitutional Affairs. In November 2009, the Government commenced a public consultation exercise on the methods for selecting the Chief Executive and for forming the Legislative Council in 2012. At the Council meeting of 14 April 2010, the Government announced its package of proposals, which included increasing the number of Legislative Council seats to 70 with 35 seats returned by each of the two groups of constituencies, i.e. functional constituencies and geographical constituencies, with all 5 new functional constituency seats and the existing District Council functional constituency seat being returned through election from among elected District Council members under the "proportional representation system".^[46] A subcommittee of the House Committee was formed to study the Government's proposals. Members' views on the proposal in relation to the composition of the Legislative Council remained divided. Nevertheless, political parties/groupings and Members of the Legislative Council continued their dialogue with the relevant authorities to put across their wish to see more concrete steps towards universal suffrage in the election of the Legislative Council as set out in the Basic Law. On the other hand, Mr Qiao Xiaoyang, Deputy Secretary General of the Standing Committee of NPC, also made two statements on the subject and made it clear that the elections of the Chief Executive and the Legislative Council by universal suffrage must meet the requirement of universality and equality.

2.53The communication between political parties/groupings and the Central Government through the Liaison Office of the Central People's Government in the two months after 12 April 2010 had made it possible for the Government to announce on 21 June 2010, two days before the day on which the two motions in relation to the methods of selecting the Chief Executive and forming the Legislative Council in 2012 were to be moved, a change in the Government's proposals. The Government agreed to introduce the arrangement of "one person, two votes" in the 2012 Legislative Council Election, which would be implemented by way of local legislation. Among the new arrangements was the proposal that candidates for the 5 new functional constituency seats should be nominated by elected District Council members and elected by all registered voters who did not have a right to vote in functional constituencies on a one-person-one-vote basis. At the Council meeting of 23 June 2010, the Legislative Council passed by a two-thirds majority the relevant motion put forward by the Government. The motion contained an amendment to Annex II to the Basic Law to provide that the Fifth Legislative Council to be elected in the year 2012 should be composed of 70 Members, with 35 returned by functional constituencies and 35 by geographical constituencies through direct elections. With the Chief Executive's consent the draft amendment to Annex II was put to the Standing Committee which, on 28 August 2010, recorded the amendment. On 15 December 2010, the Legislative Council (Amendment) Bill 2010 was introduced to the Legislative Council to implement the method for forming the Legislative Council as prescribed in the amendment to Annex II to the Basic Law. On 5 March 2011, the Bill was passed.

2.54The general election for Members of the Fifth Legislative Council took place on 9 September 2012. The term of the Fifth Legislative Council commenced on 1 October 2012.

Term of office of the Legislative Council

Terms and sessions

2.55According to Article 69 of the Basic Law, the term of office of the Legislative Council of the HKSAR shall be four years, except the first term which shall be two years. Although the Basic Law specifies the duration of a term, it does not prescribe when a term should begin or end. These arrangements are provided for by the Legislative Council Ordinance (Cap. 542) ^[47] which empowers the Chief Executive to specify the date, which must be within 30 days after the relevant general election^[48]. The decision on the date and time for holding the first meeting of each legislative term then rests with the Chief Executive ^[49], but this must be within 14 days after the term begins.

2.56The Legislative Council Ordinance also provides that the Chief Executive must convene at least one ordinary session in each calendar year^[50], and a session which begins in one calendar year may be continued and concluded in the following year.^[51] The Chief Executive must publish in the Gazette the dates on which a legislative session is to begin and to end ^[52]. In the Hong Kong Legislature the convention is that there is one session in each calendar year commencing in October and ending in July in the following year. However, as the First Legislative Council commenced its term on 1 July 1998, its first session commenced on 2 July 1998.

2.57Soon after the Members of the First Legislative Council had taken office on 1 July 1998, they found that the Council needed to take a break of six weeks from late July to early September as there was little Government business to be transacted in the Legislative Council before the delivery of the Policy Address scheduled for October that year. This long break was considered highly disruptive to the work of the Council. The Committee on Rules of Procedure was then asked to undertake a study on the appropriate commencement and ending of a legislative session for the smooth and effective operation of the legislature. The Committee noted that the Government had difficulty in advancing the Policy Address to July as the working mechanism within the Government historically had been designed to facilitate the Policy Address to be delivered in October, which was the starting time of a new session in the pre-1997 Legislative Council, followed by the budget exercise in March. Members of the First Legislative Council therefore asked the Government to consider deferring the commencement of a new session to October to tie in with the delivery of the Policy Address. In response to Members' request, the Chief Executive decided that the 1999-2000 session and future sessions of the Legislative Council would commence in October.^[53]

2.58When the Committee on Rules of Procedure of the First Legislative Council studied the question of the commencement date of a session, it noted that if the Second Legislative Council was to commence on 1 October 2000 there would be a gap between the end of the term of the First Legislative Council on 30 June 2000 and the commencement date of the Second Legislative Council. The Committee concluded that there was no requirement under the Basic Law that terms should follow immediately after each other. The First Legislative Council would dissolve immediately after its term of office and the gap from 1 July 2000 to 30 September 2000 would allow time for the holding of a general election to be held. As regards all subsequent terms, in order that all sessions would commence in October, the Council would have to be prorogued in July after the last meeting of the last session of the term to enable a general election to take place ^[54].

Council meeting dates, recess and breaks

2.59At the start of the first session of a new term, the President, after being elected, determines the dates and times of the Legislative Council meetings to be held in that session^[55]. Council meetings are scheduled for each Wednesday in the session except public holidays and during long holidays such as Christmas, Lunar New Year and Easter, or during the Budget period. Rule 14(1) of the Rules of Procedure provides that a period of 6 weeks shall not elapse between the date of one meeting and the date appointed for the next meeting in the same session. The Council normally holds 30 to 35 meetings in each session.^[56] Each meeting may last for more than one day.

2.60The period between two sessions, i.e. normally from mid-July to early October, is generally known as the summer recess. Prior to July 1997 when the Royal Instructions were still in force it was stipulated that the period between the last sitting of one session and the first sitting of the next session should not exceed three months. There is no such stipulation in the Legislative Council Ordinance passed in September 1997, but in practice the summer recess between two sessions in the same term has never been more than three months.

2.61As regards meeting hours, in October 2005 the Legislative Council advanced the starting time of the meeting from 2:30 pm to 11:00 am to allow for longer meetings. The Council is adjourned when all business on the Agenda ^[57] for the Council meeting is dealt with. Each meeting may last one or more days depending on the amount of business on the Agenda. For the debate on the Motion of Thanks for the Chief Executive's Policy Address, it has been normal practice for three days to be reserved, except in 2001 when the debate lasted four days. The detailed arrangements for the debate on the Motion of Thanks are explained in Chapter 5. The last Council meeting before the summer recess is normally held in the second or third week of July. In recent years, it has been quite common for committees to meet during the summer recess in order to deal with urgent matters or make use of this period for conducting overseas duty visits.

Adjournment of the Council

2.62It is the President's responsibility to determine how frequently the Council should meet so that there is sufficient time for the Council to deal with the business put forward by the Government and by Members of the Council in the session. In the event that the business on the Agenda of a meeting cannot be dealt with within one single day, it is normal practice that the President suspends the meeting at a certain hour of that day and resumes it on the following day or any day to be determined by him after consulting Members^[58], until all business on the Agenda is dealt with, and the Council will then stand adjourned until the next scheduled meeting date. In the event that the Council is adjourned due to a lack of quorum, Rule 17(5) of the Rules of Procedure provides that the question on which it is adjourned shall stand over until the next meeting. The President then orders that the unfinished business be stood over to the Agenda for the next scheduled meeting in accordance with the order of the business set out in Rule 18 of the Rules of Procedure.^[59] In the event that a meeting is suspended and the unfinished business cannot be continued on another day before the next scheduled meeting, it has also been the practice that the unfinished business would stand over to the next scheduled meeting and be placed on the Agenda in the same manner ^[60].

Prorogation of the Council

2.63Under Section 6 of the Legislative Council Ordinance, the Chief Executive must specify a date for holding a general election to elect the Members for each term of office of the Legislative Council. The date must be not earlier than 60 days and not later than 15 days before the new term of office is to begin. To enable such a general election to be held, the Chief Executive may require the Legislative Council to be prorogued to terminate its operation and in that event he must specify a date for such prorogation in the Gazette.

2.64When the Council is prorogued, all its unfinished business falls. All the bills not yet been passed will lapse at the end of the term of office of

the Legislative Council ^[61]. Members, however, are still Members of the Legislative Council and in the event that an urgent meeting is to be convened during the prorogation of the Council any Members, notwithstanding their being nominated as a candidate for the upcoming Legislative Council election, may attend and vote at the meeting in accordance with the Rules of Procedure.^[62]

Dissolution of the Council

2.65By virtue of section 4(6) of the Legislative Council Ordinance, the Legislative Council is, if not dissolved earlier by the Chief Executive in accordance with the Basic Law, dissolved immediately after its term of office ends. When a Legislative Council is dissolved, Members of the dissolved Council are no longer Members of the Legislative Council and they cease to receive any Members' remuneration and benefits with effect from the date of dissolution. The new Legislative Council must be reconstituted by election within three months^[63]. However, by virtue of Section 11 of the Legislative Council Ordinance, where an emergency session of the Legislative Council is to be convened at the request of the Chief Executive during the period after the Council is dissolved but before the general election takes place, the persons holding office as Members of the Legislative Council during the term of office immediately before the emergency session shall be deemed to be Members of the Legislative Council.

Order of precedence of Members

2.66The order of precedence of Members helps to determine which Member should convene a meeting before a chairman is elected. It is an established practice in the Legislative Council, as reflected in Appendix IV of the House Rules, that the Member who has the highest precedence amongst Members present at an election of a chairman should preside at the election.

2.67Under Rule 1A of the Rules of Procedure, the order of precedence of a Member of the Legislative Council is determined according to the continuous period of time for which the Member has served as a Member; and the longer his service the higher his order of precedence. Where two or more Members have the same length of continuous service precedence is given to the one who first made or subscribed the oath or affirmation in accordance with Rule 1 of the Rules of Procedure. The order of the making of an oath/affirmation for those with the same continuous service is determined according to the number of strokes in the traditional characters of the Members' names in Chinese; a Member whose name has the least number of strokes shall make or subscribe an oath or affirmation first. This practice is reflected in Rule 1(b) of the House Rules.

The President of the Legislative Council

2.68Article 71 of the Basic Law provides that the President of the Legislative Council shall be elected by and from among the members of the Legislative Council. The President shall be a Chinese citizen of not less than 40 years of age, who is a permanent resident of the HKSAR with no right of abode in any foreign country and has ordinarily resided in Hong Kong for a continuous period of not less than 20 years.

Powers and functions of the President of the Legislative Council

2.69Article 72 of the Basic Law provides that the President of the Legislative Council shall exercise the following powers and functions:

(1)To preside over meetings;

(2)To decide on the agenda, giving priority to government bills for inclusion in the agenda;

(3)To decide on the time of meetings;

(4)To call special sessions during the recess;

(5)To call emergency sessions on the request of the Chief Executive; and

(6)To exercise other powers and functions as prescribed in the rules of procedure of the Legislative Council.

2.70According to the Rules of Procedure^[64], the President, when present at a meeting of a committee of the whole Council, shall be the Chairman. When presiding, the President shall enjoy all those powers conferred by the Rules on the President or the Chairman. Although the President is given the general powers and functions to preside over meetings and to decide on the agenda, Article 72(6) of the Basic Law provides that the President is to exercise other powers and functions as prescribed in the rules of procedure of the Legislative Council. In this respect, the Court of Appeal has held that the powers given to the President in the Rules of Procedure are to be supplementary to his power under Article 72(1) of the Basic Law to preside over meetings, and that the Rules of Procedure are there to give the President additional powers, rather than to restrict his power under the Basic Law "to preside over meetings".^[65]

2.71The President is expected to be fair and impartial, and independent of any political influences. The President is guided by the Rules of Procedure and conventions in presiding over meetings of the Council. In any matter not provided for in the Rules of Procedure, the President, under Rule 92 of the Rules of Procedure, may decide such practice and procedure to be followed in the Council, and in the process, if he thinks fit, he may be guided by the practice and procedures of other legislatures. Under Rule 44, the President, when presiding, shall be responsible for the observance of the rules of order, and his decision on a point of order shall be final. As mentioned above, the Powers and Privileges Ordinance also provides power to the President of the Legislative Council to excuse a witness from answering a question or producing any book, record or document on the ground that it is of a private nature and does not affect the subject of inquiry. The President also excuses the witness if he considers that the question asked or the book, record or document ordered for production is not relevant to the subject matter of the inquiry. This power is also supplementary to those conferred on him under the Basic Law. Under the Powers and Privileges Ordinance, the President shall not be subject to the jurisdiction of any court in respect of the lawful exercise of any power conferred on or vested in him or under this Ordinance or the Rules of Procedure.^[66]

2.72The President is at the same time the Chairman of The Legislative Council Commission by virtue of his position as President. The Legislative Council Commission is a statutory body established by The Legislative Council Commission Ordinance (Cap. 443), with the main function of providing administrative and support services to the Council through the Legislative Council Secretariat. As the Chairman of the Commission, the President oversees the provision of administrative support to the Council and its Members, and ensures that the Legislative Council has the means and support that it requires for exercising and performing its powers and functions under the Basic Law effectively, efficiently and independently. Further details are provided in Chapter 3.

Election of the President

2.73The election of the President takes place at the first meeting of the Council at the start of a new term. Nominations signed by a Member making the nomination and by at least three other Members seconding the nomination should reach the office of the Clerk to the Legislative Council at least 4 clear days^[67] before the day of election. The Clerk must distribute a list of all valid nominations to all Members of the Council at least 2 clear days before the day of election. Prior to the meeting for the election of the President, it has been a practice since 2000 for a candidate for the office to present his/her platform and answer questions from Members at a special forum, which is not a Council meeting but is open to the public.

2.74The procedure for the special forum is set out in the House Rules^[68]. The special forum usually lasts for no more than two hours. The presiding Member is the Member present with the longest continuous service in the Council. After each candidate has spoken for up to 5 minutes, all Members present are invited to put forward their questions for answer by one or more candidates. The contents of speeches made and questions asked at the special forum are subject to the following:

(a)It shall be out of order to use offensive and insulting language about Members of the Council;

(b)A member shall not impute improper motives to another Member;

(c)Questions put to a candidate shall be concise and to the point; and

(d)Only one question shall be asked by a Member at a time.

2.75The election of the President takes place at the first Council meeting, immediately after all Members have made or subscribed an oath or affirmation administered by the Clerk. The Member who has the longest continuous service in the Council and who is not nominated for the office of the President presides at the election. A vote by secret ballot is ordered if there are two or more valid nominations. All Members present including the presiding Member shall have the right to vote. The candidate who receives the highest number of votes is declared elected as the President. It is only when there is a tied vote between the two Members with the highest number of votes that a second round of voting will be ordered. In the event of a second tied vote the election is decided by the drawing of lots.

Term of office

2.76The President shall hold office until the Council dissolves at the end of the term or is dissolved under the Basic Law. Nevertheless, section 25 of the Powers and Privileges Ordinance provides that the President may exercise the powers conferred on him by the Ordinance even though the Council has been dissolved. In the event that the President resigns in the middle of the term, an election of the President must be held in accordance with Rule 4 and Schedule of the Rules of Procedure. In the meantime, the President's Deputy shall have the powers conferred by the Rules of Procedure on the President or Chairman of the committee of the whole Council that are exercisable in respect of the meeting at which the President's Deputy presides.

Voting right

2.77Although it is a practice that the President of the Legislative Council does not vote in the Council in order to maintain his neutrality, the President does have his original vote which should be cast, if he decides to do so, at the same time when all other Members are casting their votes. None of the Presidents of the Legislative Council of the HKSAR has cast his or her original vote so far.

2.78The casting vote given to the President in the Pre-1997 Standing Orders^[69] was removed from the First Legislative Council^[70] onwards in order to conform with the requirement of the Basic Law. Under the Basic Law, the passage of all motions before the Council or in a committee of the whole Council requires a majority vote of the Members present or a majority vote of each of the two groups of Members present, as the case may be. A motion with a tied vote is regarded as not passed and is deemed to be decided in the negative.

The President's deputy

2.79In the absence of the President from a meeting or a part of a meeting of the Council or a committee of the whole Council or when, in his opinion, he is unable to act, the President's deputy shall preside at that meeting or that part of the meeting. The Member elected as the chairman of the House Committee is ex officio the President's deputy. In the event that he is absent or, in his opinion, unable to act, the member elected as the deputy chairman of the House Committee acts as the President's deputy.

2.80Under Rule 3(3) of the Rules of Procedure, the President's deputy enjoys all those powers conferred by the Rules of Procedure on the President or Chairman that are exercisable in respect of the meeting, or part of the meeting, of the Council or a committee of the whole Council at which the President's deputy presides or is Chairman. The exercising of the powers includes not only those required for the conduct of a meeting but also for dealing with matters which require the prior approval of the President or Chairman in respect of the part of the meeting at which the President's deputy will preside.^[71] In addition, the President's deputy shall also enjoy such other powers conferred on the President or Chairman as the President may specify by notice in the Gazette.

The Clerk to the Legislative Council

2.81By Section 3 of the Interpretation and General Clauses Ordinance (Cap.1), the Clerk to the Legislative Council means the Secretary General of the Legislative Council Secretariat, appointed under the Legislative Council Commission Ordinance (Cap. 443)^[72] and includes the Deputy Secretary General and any Assistant Secretary General of the Legislative Council Secretariat. The Secretary General may designate the Deputy Secretary General or any Assistant Secretary General to undertake any of the duties which should be carried out by the Clerk as specified in the Rules of Procedure. The duties of the Clerk are set out in Rule 6 of the Rules of Procedure and can be summarized as follows:

(a)advising the President on all matters relating to the procedure of the Council;

(b)keeping the minutes of proceedings of the Council and of committees of the whole Council, recording the Members attending, all decisions made and details of every division in voting held;

(c)preparing from day to day a Council Agenda Item Book showing all future business of which notice has been given and making it open to inspection by Members and relevant public officers at all reasonable hours;

(d)preparing for each Council meeting an Agenda showing the business for that meeting, under the directions of the President;

(e)having custody of the votes, records, bills and other documents laid before the Council, and making such documents open to inspection by Members and relevant public officers at all reasonable hours;

(f)being responsible for the production of the Official Record of all proceedings in the Council and in the committee of the whole Council, under the direction of the President;

(g)providing every committee and subcommittee of the Council with a clerk; and

(h)undertaking any other duties laid upon the Clerk in the Rules of Procedure and all other duties as ordered by the Council or directed by the President.

2.82As Clerk to the Legislative Council, the Secretary General is the principal adviser on procedural matters in the Legislative Council. He advises the President on all procedural matters and also oversees the provision of procedural advice given by other clerks to the chairmen and members of committees. It is also the Secretary General who oversees the preparation of explanatory notes and guidelines to facilitate Members' understanding of procedural rules, as well as the production of handbooks and work manuals for committee chairmen and clerks.

2.83It has been the practice of the Legislative Council in Hong Kong, even before reunification, that Members are kept informed of all business to be dealt with at Council meetings at the earliest opportunity. Changes are made from time to time to improve the working mechanism within the Council to allow Members sufficient time to prepare themselves for debates and, if needed, to give notice of the amendments sought to be moved. With the rising public expectation for greater transparency of the work of the Legislative Council it has been the practice for the Clerk to issue any bills for which notice has been given, as well as any documents to be laid before the Council, to all Members as soon as such notice or document is received. As for questions to be raised or motions to be moved at a Council meeting, Members will be notified once the President has approved their inclusion on the Agenda.

2.84Under Rule 14(2) of the Rules of Procedure, written notice of every meeting of the Council, other than the first meeting of a new session and meetings held within 14 clear days of the commencement of the first session of a term, is given by the Clerk to Members at least 14 clear days before the day of the meeting^[73]. It is an established practice that the preliminary Agenda of a Council meeting is issued 6 clear days (usually the Tuesday in the week preceding the Council meeting if there is no intervening holiday) before the date of the meeting, with all items of business agreed to be included on the Agenda by the President, in order that Members and relevant public officers are made well aware of the matters to be considered at the Council meeting. The updated formal Agenda is issued one clear day before the Council meeting. If any item is found to be out of order by the President and therefore not included on the Agenda, the Clerk will ensure that such decision is relayed to the Member concerned as well as all other Members on the same day. All information on the Agenda of meetings of the Council, as well as that of committees, is available at the official website of the Legislative Council.

2.85The keeping of records is an important function of the Clerk as it is in all legislatures where decisions may be challenged. For Council meetings, there are the minutes of the proceedings and Official Record of proceedings (which is generally referred to as "Hansard" as explained in Chapter 4). The records of proceedings are first presented in the original language as delivered by Members and public officers at Council meetings as a "Floor version" which is published and uploaded onto the official website of the Legislative Council within 7 working days, with the translated versions within 24 working days^[74]. It is also the duty of the Clerk to appoint a clerk to every committee and subcommittee of the Council. The clerk responsible for servicing a committee or subcommittee prepares minutes of meetings with detailed records of attendance, deliberations and decisions made. On occasions, with the committee's consent, the record of the discussion of a meeting may be prepared in verbatim form to facilitate future referral to the information given at the meeting. It is the responsibility of the Clerk to ensure that all records of the proceedings of the meetings of the Council and committees are properly kept and made available for public access (except those parts which are classified as confidential).

The Counsel to the Legislature

2.86Under Rule 7 of the Rules of Procedure, the Legal Adviser of the Legislative Council Secretariat shall be the Counsel to the Legislature. The Counsel's general duty is to advise the President and the Clerk on legal questions arising in relation to the business or administration of the Council.

2.87Prior to 1995, it was the Attorney General's Chambers or the Legal Department that was responsible for advising the Clerk on procedural matters, and the Law Draftsman in the Legal Department was named as the Counsel to the Legislature in the Standing Orders. Even after the appointment of a Legal Adviser to the then UMELCO Secretariat in 1985, the Law Draftsman of the Legal Department continued to act as Counsel to the Legislature until the Standing Orders were amended in 1995 to substitute the Legal Adviser of the Legislative Council Secretariat for the Law Draftsman following the establishment of The Legislative Council Commission in April 1994.

2.88The Legal Adviser is assisted by a team of legal professionals. They form the Legal Service Division of the Legislative Council Secretariat which provides legal service for the Council and its committees. They also perform the role of in-house lawyers of The Legislative Council Commission. In cases where the President and also Members of the Council are involved in litigation on matters arising from their exercise and discharge of powers and functions in their official capacity, the Legal Service Division provides them with the necessary legal service, including the briefing of counsel to represent them in judicial proceedings. The Legal Adviser and his assistants are exempt from service as jurors by virtue of section 5 of the Jury Ordinance (Cap. 3).

Other officers of the Council

2.89Under section 24 of the Powers and Privileges Ordinance, every officer of the Council shall, for the purposes of that Ordinance and of the application of the criminal law, have all the powers and enjoy all the privileges of a police officer within the precincts of the Chamber. Section 23 of the Ordinance further provides that any officer of the Council shall not be subject to the jurisdiction of any court in respect of the lawful exercise of any power conferred on or vested in ... such officer by or under the Ordinance or the Rules of Procedure.

2.90In the Administrative Instructions for Regulating Admission and Conduct of Persons, "officer of the Council" is defined as the Clerk or any other officer or person acting within the precincts of the Chamber under the orders of the President, and includes any police officer on duty within the precincts of the Chamber. These "officers of the Council" generally refer to the staff members engaged by The Legislative Council Commission^[75] to perform various duties to support the work of the Council. It has been the policy adopted by The Legislative Council Commission that the day-to-day security management of the precincts of the Chamber is undertaken by the internal security staff of the Legislative Council Secretariat, who are the officers of the Council within the meaning of the Administrative Instructions. It is only under very urgent and serious circumstances that police officers would be called into the precincts to assist.

[1]

Articles 43 and 60 of the Basic Law.

[2]

Article 59 of the Basic Law.

[3]

Article 66 of the Basic Law.

[4]

Article 80 of the Basic Law.

[5]

Article 62 of the Basic Law. Under section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), "subsidiary legislation" and "subordinate legislation" are given the same meaning.

[6]

Article 56 of the Basic Law.

[7]

Proposals to amend a bill are subject to the stipulations in the Rules of Procedure.

[8]

According to the Court's judgment in LEUNG Kwok-hung v The President of the Legislative Council of the Hong Kong Special Administrative Region [2007] 1 HKLRD 387, "the rules of procedure which the Council has the power to set for itself in order to govern the manner in which it enacts, amends or repeals laws". para. 7.

[9]

Articles 49, 50 and 52(2) of the Basic Law.

[10]

According to the enactment formula updated on 22 August 1986, "[a]ll laws shall be styled 'Ordinances' and the enacting words shall be 'enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof', or the corresponding style and words in Chinese."

[11]

See Clause XXVIII of the Royal Instructions.

[12]

Article 17 of the Basic Law.

[13]

The word "Government" in the context of this Companion refers to the Administration of the HKSAR which includes the Chief Executive and the entire executive authorities.

[14]

Rule 31 of the Rules of Procedure stipulates that a motion or amendment with charging effect shall be proposed only by the Chief executive; or a designated public officer; or a Member, if the Chief Executive consents in writing to the proposal.

[15]

Article 62(4) of the Basic Law.

[16]

Article 48(10) of the Basic Law.

[17]

Mr Ji Pengfei was the Chairman of the Drafting Committee for the Basic Law of the HKSAR of the People's Republic of China.

[18]

Rules 25(1)(g) and (j), 41(2), 43 and 93(e) of the Rules of Procedure. This self-imposed restriction reflects the UK practice as well as practice in most modern legislatures.

[19]

Meetings of the House Committee on 16 May 2003 and 28 May 2004.

[20]

See Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd Edition, p. 64.

[21]

See Erskine May (24th Edition), p. 203.

[22]

Chief Secretary's speech at the Legislative Council sitting on 15 May 1985. Hansard.

[23]

Chief Secretary's speech at the Legislative Council sitting on 15 May 1985.

[24]

See section 5(1)(a) of Jury Ordinance (Cap.3).

[25]

In 1994, the immunities were extended to the Governor (now the Chief Executive) and public officers designated to attend a meeting of the Council and a committee, and the meaning of "committees" was extended to include panels and subcommittees.

[26]

Section 9 of the Legislative Council (Powers and Privileges) Ordinance.

[27]

Section 23 of the Legislative Council (Powers and Privileges) Ordinance. This does not prevent actions for judicial review of the lawfulness of exercise of the Council's powers.

[28]

Section 14 of the Legislative Council (Powers and Privileges) Ordinance.

[29]

Section 16 of the Legislative Council (Powers and Privileges) Ordinance.

[30]

Section 22 of the Legislative Council (Powers and Privileges) Ordinance.

[31]

Rule 81 of the Rules of Procedure. In the UK parliament such premature disclosure is regarded as a contempt.

[32]

CHENG Kar Shun and Another v LI Fung Ying and Others [2011] 2 HKLRD 555.

[33]

Section 8 of the Legislative Council (Powers and Privileges Ordinance).

[34]

Rules 86, 87 and 88 of the Rules of Procedure.

[35]

The "Administrative Instructions for Regulating Admittance and Conduct of Persons" were amended on 9 occasions between 1993 and 2011 for purposes such as banning of smoking inside the Legislative Council Building in 1999, and the changing of the definition of the Legislative Council "Building" following the relocation to the new Legislative Council Complex in the Tamar site in 2011.

[36]

Section 3 of the Legislative Council (Powers and Privileges) Ordinance.

[37]

Section 4 of the Legislative Council (Powers and Privileges) Ordinance.

[38]

Section 5 of the Legislative Council (Powers and Privileges) Ordinance.

[39]

Section 6(1) of the Legislative Council (Powers and Privileges) Ordinance.

[40]

Section 6(3) of the Legislative Council (Powers and Privileges) Ordinance.

[41]

Section 6(2) of the Legislative Council (Powers and Privileges) Ordinance.

[42]

http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc18.pdf

[43]

http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc12.pdf

[44]

The Election Committee was composed of four 200-member sectors which were subdivided into 38 subsectors. It was formed following elections by the respective subsectors held on 2 April 1997.

[45]

"The Fifth Report of the Constitutional Development Taskforce: Package of Proposals for the Methods for Selecting the Chief Executive in 2007 and for Forming the Legislative Council in 2008" recommended, in respect of the composition of the Fourth Legislative Council, the number of seats be increased from 60 to 70, and the additional 5 seats in the functional constituencies were to be returned by District Council members form among themselves, hence increasing the number of seats returned by District Council Constituencies from one to six.

[46]

See Chapter 3.

[47]

Section 4(3) of the Legislative Council Ordinance.

[48]

Section 4(5) of the Legislative Council Ordinance.

[49]

Section 10(1) of the Legislative Council Ordinance.

[50]

Section 9(1) of the legislative Council Ordinance.

[51]

Section 9(3) of the Legislative Council Ordinance, as reflected in Rule 11 of the Rules of Procedure.

[52]

Section 9(2) of the Legislative Council Ordinance.

[53]

Changes to the dates on which the Policy Address was delivered are elaborated in Chapter 5 under "Policy Address".

[54]

Section 6(3) of the Legislative Council Ordinance (Cap. 542) provides "To enable … a general election to be held, the Chief Executive may, before the end of a term of office of the Legislative Council, prorogue the Council to terminate its operation."

[55]

The date and time of the first meeting of each new term is specified by the Chief Executive under Section 10(1) of the Legislative Council Ordinance (Cap. 542).

[56]

Except in the First Legislative Council term during which 45 Council meetings had been held, on average 32 Council meetings (excluding first meeting where Members are sworn in and the Chief Executive's Questions and Answers sessions) have been held in each session since the Second Legislative Council.

[57]

"Agenda" is the word used in the Basic Law. It is intended to be the same as "Order Paper" of the Legislative Council sittings that took place before 1 July 1997.

[58]

On 18 May 1999, the House Committee of the First Legislative Council decided to recommend to the President that if the business of a Council meeting could not be completed before midnight on the same day, the meeting should be suspended at 10 pm and resumed on another day. The President has since adopted this recommendation as a practice under normal circumstances.

[59]

Due to the adjournment of the Council at its meeting on 17 October 2007 for the lack of a quorum, the President ordered that the unfinished motion debate on "Development of the convention and exhibition industry" be placed on the agenda of the following meeting (24 October 2007). The motion was placed on the Agenda ahead of the Motion of Thanks which was originally the only Members' motion for 24 October 2007. (One reason the President considered when making his decision was that it was natural and logical for the Council firstly to deal with an unfinished motion stood over from the last meeting before moving on to the next item on the Agenda.)

[60]

At the House Committee meeting on 25 May 2012, Members agreed to recommend to the President that any unfinished business on the Agenda of the Council meeting of 30 May 2012 which would last for four days until 2 June 2012 would stand over to the next scheduled meeting of the Council on 6 June 2012.

[61]

Section 9(4) of the Legislative Council Ordinance provides, "The consideration of any bill or other business of the Legislative Council is not to be affected by the end of a session and may be resumed at any subsequent meeting, but is to lapse at the end of a term of office or on a dissolution of the Legislative Council."

[62]

Section 12 of the Legislative Council Ordinance.

[63]

Article 70 of the Basic Law.

[64]

Rule 3(1) of the Rules of Procedure provides that "There shall be a President of the Council who, when present at a meeting of the Council or a committee of the whole Council and able, in his opinion, to act, shall preside or be Chairman."

[65]

See LEUNG Kwok-hung v The President of Legislative Council, CACV 123/2012 (1 February 2013), in particular para. 53.

[66]

Section 23 of the Legislative Council (Powers and Privileges) Ordinance.

[67]

The expression "clear days" excludes the day of the giving of notice, the day of the relevant meeting and intervening public holidays.

[68]

Rule 1A and Appendix I of the House Rules.

[69]

Standing Order No. 35(2).

[70]

The voting method in Annex II to the Basic Law did not apply to the Provisional Legislative Council. The President of the Provisional Legislative Council was required to vote when there was a tie in votes.

[71]

In respect of a request from Hon Cyd HO Sau-lan for moving an adjournment motion under Rule 16(2) of the Rules of Procedure on "the integrity and probity of the Chief Executive and his responsibility for upholding the fairness and impartiality of the next Chief Executive Election to be held on 25 March" at the Council meeting of 29 February 2012, the President considered himself unable to determine the matter as he had announced to the public that he would seriously consider to stand in the Chief Executive Election. The President's Deputy exercised the power of the President and permitted the Member to move the motion.

[72]

Section 15(1) of The legislative Council Commission Ordinance (Cap. 443).

[73]

The President may dispense with such notice in cases of emergency and meeting held for the purposes of Rule 8 (Attendance of the Chief Executive) and Rule 15 (Meetings for Urgent Business), and in that event the longest possible notice shall be given.

[74]

The target commitment of 7 working days for producing the Floor version and 24 working days for the translated version of the record of proceedings of a Council meeting is for a one-day meeting.

[75]

The Legislative Council Commission is a statutory body established by The Legislative Council Commission Ordinance (Cap. 443), with the main function of providing administrative and support services to the Council through the Legislative Council Secretariat.