LegCo Paper No. CB(1) 205/96-97Deputy Director of Housing/Administration
(These minutes have been seen by the Administration)
Ref : CB1/BC/31/95/2
Clerk in attendance :
- Mrs Vivian KAM
- Chief Assistant Secretary (1)2
Staff in attendance :
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Miss Becky YU
- Senior Assistant Secretary (1)3
The Chairman welcomed representatives from the Administration to the meeting.
I. Meeting with the Administration on Concerns Raised by Members
(Appendices I, II and III to LegCo Paper No. CB(1) 1769/95-96)
2. In reply to the Chairman, Mrs Brenda FUNG advised that membership for most statutory bodies were, similar to that of the Housing Authority (HA), made through appointment. As regards the few cases where nomination was involved, Mrs FUNG explained that these were exceptions and would only apply when professional expertise was required and relevant professional organizations would be asked to nominate potential candidates for consideration and approval by the Governor. She emphasized that such a nomination process was different from those proposed under the Housing (Amendment) (No. 2) Bill 1996.
3. On the appointment of members to HA, Mr Dominic S W WONG advised that members of HA were appointed in their personal capacities on the basis of general experience, knowledge of housing and related matters, and ability to contribute to the efficient and effective operation of HA. This would ensure that future HA policies would be formulated in an independent, impartial and unbiased manner, and that decisions would be made in the wider interests of the community rather than as a result of political compromises in the event of a politicized membership. Mr WONG stressed that the power of LegCo under the Bills to vet candidates proposed by the Administration or to nominate candidates to HA would upset and confuse the independent roles of the executive in the formulation of policies and that of the legislature in passing legislation and monitoring the performance of the Administration.
4. Hon Bruce LIU Sing-lee was not convinced that the nomination process proposed under his Bill would politicize the choice of candidates to HA having regard to similar provisions under the Hong Kong Arts Development Council Ordinance and the Betting Duty Ordinance. Mr WONG advised that candidates nominated under the two Ordinances referred to were professionals from the fields relevant to the tasks and functions of the board or committee concerned. The proposals in the Bills however sought to introduce members of the three-tier system of representative government to HA but which, in the Administrations view, would result in a politicized membership and would give rise to party politics within HA. Hon LEE Wing-tat did not agree that public interests would be compromised by party politics and made reference to overseas experience where most presidents were elected from political parties. He further pointed out that politics often ran parallel with the power to decide.
5. In addressing members concern on whether the passage of either Bill would affect the granting of land to HA in the future, Mr WONG advised that the Bills if passed would require the assent of the Governor. He assured members that all applications for the grant of land would be considered in accordance with the established policy taking into account actual needs, and highlighted the fact that even requests for land by HA were not approved automatically.
6. Mr LIU sought clarification from the Administration on its position on issues relating to the size of membership, the number of public officers in HA, the election of Chairman and Vice Chairman of HA as well as the nomination process proposed under the Bills. In reply, Mr WONG advised that the Administration did not have a fixed membership for HA; this was determined by the Governor taking into account the needs and the anticipated workload of HA. He considered it necessary to retain the service of public officers in HA and expressed reservations about the proposed election to the key posts of HA Chairman and Vice Chairman in view of the significant influence which these posts had on policy decisions. As regards the nomination process, Mr WONG re-iterated that the introduction of members from the three-tier system of representative government to HA was unprecedented and at variance with the general policy on nomination mentioned earlier on. In reply to a related question, Mr WONG advised that members of HA, apart from public officers, were initially appointed for a term of two years. Re-appointment of members including the Chairman would be considered in two batches to ensure continuity to the operation of HA. Special consideration would also be given to members who joined HA in the middle of a term. As regards the effective date for commencement of the Bills, Mr WONG said that the Administration had not considered this at this point in time. At members request, Mrs Clarie LO undertook to provide a written response to questions raised by Mr LEE on 4 July 1996 before the next meeting on 29 July 1996.
7. On the possibility of amalgamating the two Bills, both Messrs LEE and LIU expressed no strong objection to such a proposal since both Bills sought to increase the transparency and accountability of HA. However, Mr LEE held the view that the provision for the list of potential candidates to be introduced through subsidiary legislation prescribed under his Bill was more desirable in facilitating public access to information on the candidates during the scrutiny period of the subsidiary legislation. Hon Emily LAU Wai-hing re-iterated that she was against the Housing (Amendment) (No. 2) Bill 1996 and in favour of the Housing (Amendment) Bill 1996 as the latter would ensure a proper check and balance mechanism in the appointment system.
II. Mechanism of Appointment to Other Statutory Bodies
(Extracts from relevant legislation tabled at the meeting)
8. At the invitation of the Chairman, the Assistant Legal Adviser (ALA) briefed members on the mechanism of appointment to other statutory bodies including the Governors power of appointment and the nomination process on the basis of extracts from relevant Ordinances tabled at the meeting. He explained that approval of the Governor was not required where specific provisions on the composition of the boards or committees had been included in the Ordinances, as in the case of the Hong Kong Arts Centre Ordinance. Otherwise the Governor was usually given the discretion to decide on the composition as well as the appointment of potential candidates subject to such limitations as were laid down in the Ordinances on qualifications, experience in relevant fields, nominations from professional organizations concerned etc. ALA added that while there were usually some constraints placed on the power of appointment of the Governor under existing legislation, he was not aware of any that provided for intended appointees to be vetted by LegCo.
9. In referring to the proposed addition of section 3(2A) under the Housing (Amendment) Bill 1996 which stipulated that "No order shall be made under sub-section (2)(c) unless a draft of it had been laid before and approved by resolution of the Legislative Council, and section 34 of the Interpretation and General Clauses Ordinance (Cap 1) shall not apply in relation to any such order", a member enquired whether this would contravene the existing policy on appointment and whether it was feasible, both legally and constitutionally, to introduce such a constraint on the power of appointment of the Governor. ALA confirmed that the proposal of empowering the LegCo to approve or veto as a whole, and not selectively, those persons appointed by the Governor as members of the HA was a departure from the current appointment system. He quoted the example of sections 3(3) and (4) of the Hong Kong Arts Development Council Ordinance, under which the Governor retained a discretion to select nominees put forward by relevant professional organizations. On the legality of proposed section 3(2A), ALA explained that there was no constitutional restraint on the power of LegCo to enact legislation restricting the powers of the Governor in making appointments to public bodies. However, all legislation passed by the LegCo was required constitutionally to have the royal assent signified by the Governor. ALA remarked that the section referred to should be considered from the policy angle rather than as a constitutional problem. In response to a member, ALA confirmed that it was possible to amend any of the legislation quoted.
10. In reply to a member, Mr LIU re-iterated that he personally had no intention to extend the proposals in his Bill to other statutory bodies. Mr WONG said that while the Administration welcomed the re-assurance, it was worried that the Bills, if passed, might affect the existing appointment system and set a precedent for future changes.
III. Clause-by-clause Examination of the Housing (Amendment) Bill 1996
Clause 1. Short title and commencement
11. Mr LEE explained that the date on which the Bill should come into effect was proposed having regard to the time required for HA to amend its standing orders to facilitate the election of both the Chairman and Vice Chairman of HA. The effective date could be amended subsequently.
Clause 2. Establishment and condition of the Housing Authority
12. Mr LEE said that participation of public officers in HA would remain unchanged by virtue of proposed sections 3(2)(a) and (b). The size of membership of 21 under sub-clause 2(c) was modelled after that prevailing as at October 1995 when the Bill was drafted; however he would have no strong objection to changing the size to 32 if circumstances so required. Mr LEE added that the intention of the clause was to provide for flexibility for the Administration to select potential candidates to HA.
13. Mr WONG considered that the inclusion of members from the three-tier representative government as proposed under new section 3(2)(c) would reduce the choice of candidates and would fetter the Governors power of appointment. He sought clarification on the intention of the clause and the effect if the clause were to be deleted from the Bill. ALA explained that a combined effect of sections 3(2)(c)(i) and (ii) was that except for appointees selected from the LegCo, the Urban Council (UC), the Regional Council (RC), or the District Board, other persons appointed to HA were required to have housing-related experience and knowledge. Mr LEE emphasized that the objective of his Bill was to ensure a fair and balanced membership without prejudice to the Governors power of appointment. He quoted the example of sections 9(2)(c) and (d) in the Hong Kong Arts Centre Ordinance whereby members from UC and RC were appointed to the Board of Governors. Mr WONG remarked that it was reasonable to include members of both UC and RC in the Ordinance concerned on account of their involvement in recreational and cultural issues.
14. Members held different views on the proposed deletion of proposed section 3(2)(c). While Ms LAU supported deleting the clause, Hon CHAN Kam-lam considered that the proposed deletion would run contrary to the Explanatory Memorandum of the Bill which said that its purpose was to incorporate members of the three-tier system of representative government. Dr Hon Anthony CHEUNG Bing-leung further suggested amending the proposed section 3(2)(c)(ii) as "who, not being public officers, are considered by the Governor to have experience and knowledge in housing related matters" to provide for greater flexibility. Mr LEE undertook to consider refining the Bill taking into account members views. However, he re-iterated that the Governor would have the discretion of not appointing members under the proposed section 3(2)(c)(i) and that the Explanatory Memorandum should not be interpreted in the manner as Mr CHAN had suggested.
IV. Any Other Business
15. The Chairman reminded members of the next meeting on Monday, 29 July 1996, at 10:45 am.
16. There being no other business, the meeting closed at 4:30 pm.
Legislative Council Secretariat
29 October 1996
Last Updated on 10 December 1998