Law Drafting Division

   
 
Counsel in the division
 

Most major public policies are implemented through legislation. The task of keeping pace with the demands of a crowded legislative timetable falls on the Law Drafting Division which is responsible for drafting all legislation, both Ordinances and subsidiary legislation (such as rules and regulations), proposed by the government. It also vets all non-government Bills and all subsidiary legislation put forward by non-government bodies to make sure that they comply with the current drafting practice on format and style. The division is also responsible for ensuring that the published version of Hong Kong’s legislation is up to date.

 

Legislation

Where a government proposal for new legislation is put forward, the drafting counsel will need to liaise with those making the proposal to gain a thorough understanding of the background and intended effect of the proposal. The drafting counsel must also analyse the drafting instructions carefully to ensure that the proposal is conceptually sound and legally effective. “Drafting instructions” refers to the document prepared for the drafting counsel by the responsible government policy bureau which sets out the background to the proposal and what the bureau wishes to achieve with the new legislation. The drafting instructions also specify which existing provisions will need to be amended in order to achieve that end.

After the proposed legislation is drafted, the drafting counsel assists in steering it through the legislative process. In the case of government Bills and subsidiary legislation to be made by the Chief Executive, the legislation will be submitted to the Executive Council for consideration. Drafting counsel attend the Executive Council meetings to provide advice on general legal issues and on questions relating to drafting.

 
Drafting counsel bid farewell to the former Legislative Council Chamber
 

Usually, a Bills Committee (made up of members of the Legislative Council with an interest in the particular policy area or the subject of the Bill) will be established to consider a Bill after it has been introduced into the Legislative Council. The drafting counsel attends the Bills Committee meetings to advise on general legal issues and on drafting-related questions. (If the English text and Chinese text of the Bill are drafted by two different counsel, both drafting counsel will attend the Bills Committee meetings.) The drafting counsel also drafts all committee stage amendments which are proposed, or agreed to, by the government. These amendments are considered and decided upon (at the stage when the Legislative Council sits as a Committee of the whole Council) before the Bill is put to the vote for its final reading in the Legislative Council meeting. Likewise, if an item of subsidiary legislation should be referred to a sub-committee after it has been laid on the table of the Legislative Council, the drafting counsel will attend the sub-committee meetings and draft any amendments which the government may require.

Apart from drafting legislation for policies initiated by the government, the division also undertakes any drafting work necessary to apply to Hong Kong relevant national laws of the PRC (that is, those listed in Annex III to the Basic Law), including the English translations of those laws.

Hong Kong’s legislation is fully bilingual, with all new legislation being drafted and enacted in both Chinese and English. Both language versions of a piece of legislation are equally authentic, and drafting counsel must therefore ensure that the text in each language bears the same meaning and correctly reflects the policy intention.

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Compilation and publication of laws

Loose-leaf edition of the Laws of Hong Kong

 
   

Hong Kong’s legislation is published in both a hard copy loose-leaf edition and in electronic form freely available over the internet. For the hard copy version, which contains the bilingual texts of all Ordinances and subsidiary legislation, periodic issues of new or replacement pages incorporating new legislation or amendments to the texts are sent to subscribers, who need only substitute them for the outdated pages. The hard copy version now comprises 50 volumes, containing 693 Ordinances and 1 425 items of subsidiary legislation. Volume 1 of the loose-leaf edition includes for reference the Basic Law and the national laws that apply to Hong Kong, as well as other constitutional instruments and related decisions.

 

Bilingual Laws Information System

The on-line legislation database, known as the Bilingual Laws Information System (BLIS), is available free to the public on the internet either directly at www.legislation.gov.hk or through the department’s homepage at www.doj.gov.hk. In addition to providing access to the current legislation of Hong Kong, the database also allows the public to retrieve the previous version of any statutory provision which has been repealed or amended since 1 July 1997. A marker placed against a section heading alerts the reader to the fact that that provision has been amended or repealed (and the amendment or repeal has taken effect) but the changes have not yet been incorporated in the text of the database. Changes to the text of the database are usually made within two to three weeks of the commencement of the amendment or repeal.

 

New look for legislation

With the belief that good document design helps clearer communication, the division has made changes to the format and look of Hong Kong’s legislation. These changes include larger font size for the main text, wider spacing between paragraphs and restructuring and rephrasing the provisions which amend existing legislation. With these changes, the reader can identify the location of, and relationship between, provisions more easily. The new design also helps reduce eye strain, provides a more modern appearance and makes Hong Kong’s legislation more user-friendly and attractive. The first piece of legislation adopting the new design was the Western Harbour Crossing Ordinance (Amendment of Schedule 1) Notice 2010 published in the Gazette on 30 July 2010.

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Drafting counsel : a challenging role

The drafting counsel has become more involved at the initial stages of formulating a legislative scheme. Increasing globalisation, ever more intense global competition and technological advances all call for prompt government responses to changing circumstances. To cope with the shorter time available for drafting legislation, the drafting counsel now takes an earlier opportunity to study and understand the policy thinking behind a proposal, even before it has become definitive, and to raise his or her concerns on it from the drafting perspective.

Further, as legislative items are scrutinised more vigorously, the drafting counsel spends more time on assisting in the legislative process as a Bill progresses to enactment. The drafting counsel often has to work closely with policy bureaus and other divisions of the Department of Justice, either in the preparation of papers dealing with issues raised by members of the Legislative Council, or when attending briefing sessions for members of the Executive or Legislative Councils as part of the government team promoting the Bill. Occasionally, the drafting counsel may need to provide papers to a Bills Committee, explaining drafting issues in which the committee has shown particular interest.

To reflect more fully the role of drafting counsel, the division has adopted from 2004 onwards new performance indicators to measure work undertaken by drafting counsel as the legislative scheme is formulated and in the legislative process. These new indicators are in addition to the indicators that the division has been using for years, namely, the volume of legislation, as represented by the number of pages of legislation published in the Gazette. The statistics compiled under the various indicators (shown in the statistics section at the back of this review) reflect the different facets of the legislative drafting work undertaken by the division.

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New Ordinances enacted in 2010 and 2011

In 2010 and 2011, the following new principal Ordinances giving effect to a wide range of government policy initiatives were enacted:

  • Genetically Modified Organisms (Control of Release) Ordinance (Cap 607)
    To implement the Cartagena Protocol on Biosafety to the Convention on Biological Diversity to control the release into the environment, and the import and export, of genetically modified organisms
  • Minimum Wage Ordinance (Cap 608)
    To provide for a minimum wage at an hourly rate for certain employees and to establish a Minimum Wage Commission
  • Arbitration Ordinance (Cap 609)
    To reform Hong Kong’s arbitration law by abolishing the two separate regimes for domestic arbitrations and international arbitrations under the repealed Arbitration Ordinance (Cap 341) and by establishing instead a unitary arbitration regime
  • Buildings Energy Efficiency Ordinance (Cap 610)
    To require compliance with codes of practice concerning the energy efficiency of air-conditioning installations, electrical installations, lift and escalator installations and lighting installations and energy audits in respect of several types of buildings
  • Motor Vehicle Idling (Fixed Penalty) Ordinance (Cap 611)
    To set fixed fines for running a motor vehicle’s engine while the vehicle is stationary
  • Food Safety Ordinance (Cap 612)
    To strengthen the control of food import and distribution by establishing a registration scheme and requiring the keeping of records by persons who acquire, capture, import or supply food
  • Residential Care Homes (Persons with Disabilities) Ordinance (Cap 613)
    To establish a licensing scheme to monitor the residential care services for persons with disabilities
  • Legislation Publication Ordinance (Cap 614)
    To establish an online consolidated legislation database with a legal status and to expand public access to Hong Kong legislation
  • Anti-Money Laundering and Counter-Terrorist Financing (Financing Institutions) Ordinance (Cap 615)
    To improve the compliance of Hong Kong’s anti-money laundering regime with the prevailing international standards
  • Communications Authority Ordinance (Cap 616)
    To establish the Communications Authority to unify the functions of the Broadcasting Authority and the Telecommunications Authority in order to keep pace with the convergence of the two markets
  • Pyramid Schemes Prohibition Ordinance (Cap 617)
    To tackle objectionable pyramid selling schemes

The following Bills which will become new principal Ordinances if enacted were also introduced into the Legislative Council in 2010 and 2011, and they are expected to be passed by the Legislative Council in the 2011-2012 legislative session:

  • Adaptation of Laws (Military References) Bill
    To adapt military-related references to conform with the Basic Law and Hong Kong’s status as a Special Administrative Region of the PRC
  • Competition Bill
    To prohibit and deter abusive or other anti-competitive conduct
  • Companies Bill
    To rewrite the existing Companies Ordinance (Cap 32) to further enhance Hong Kong’s status as a major international business and financial centre
  • Lifts and Escalators Bill
    To strengthen the registration regime of personnel engaged in lift and escalator works and to improve the existing regulatory scheme
  • Mediation Bill
    To provide a regulatory framework in respect of various aspects of mediation
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Evolving drafting styles and practices

The division remains strongly committed to plain language drafting and to making the statute book more user-friendly. The division’s Drafting Techniques and Legislative Styles Committee, established in 2008, examines the division’s drafting styles and practices regularly to improve the comprehensibility and quality of the English and Chinese texts of legislation. Gender-neutral language, model clauses, use of words and expressions, numbering of legislative provisions and other issues relating to drafting styles and practices are all discussed by members of the committee. Decisions of the committee form the basis of guidelines and rules for drafting counsel after consultation. As a result, a number of changes to our drafting styles and practices have been introduced.

Examples of the more important changes are: first, “must” is used to impose an obligation in place of “shall” and “must not” is used to impose a prohibition instead of “shall not” and “no person shall”. The word “must” is preferred because it denotes an obligation in ordinary usage whereas “shall” is commonly understood in ordinary language as referring to the future. (Several common law jurisdictions, including Australia and New Zealand, have embraced “must”. The United Kingdom is using it increasingly.) Secondly, the division has now officially adopted a policy of gender-neutral drafting. Thirdly, archaic words (eg “hereby”) are avoided as far as possible, and modern alternatives or plain language equivalents are adopted for certain words and expressions (eg “despite” instead of “notwithstanding”).

In the Chinese text of legislation, we seek to avoid long sentences and, for that purpose, practise greater flexibility as regards sentence structure so that Chinese provisions are more readily comprehensible.

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Professional development of drafting counsel

Overseas training

In 2011, two Government Counsel from the division completed a four-week legislative drafting course held by the Institute of Advanced Legal Studies at the University of London. The course provided a systematic approach to the theory and practice of legislative drafting and discussed the recent trends in this specialised area of the legal profession.

   
 
Drafting counsel with their classmates at a legislative drafting class in London
 

 

Counsel exchange programme

 
The Law Draftsman presenting a souvenir to an Australian participant in an exchange programme
 

Under a reciprocal exchange arrangement, an Assistant Parliamentary Counsel from the Australian Government’s Office of Parliamentary Counsel and a Government Counsel from the division undertook training attachments in each other’s jurisdiction from January to April 2011. During her attachment to the division, the young law drafter from Australia held a briefing for counsel of the division and shared her knowledge and experience about the personnel, working methods and procedures of her office. Our counsel also conducted a briefing on the legislative process in Hong Kong for her Australian counterparts.

 

Drafting counsel hold monthly meetings to share experiences

 

Knowledge sharing

The division has been holding meetings of counsel on a monthly basis since January 2011 to provide updates on the progress of the division’s work. At these meetings counsel briefly talk about the items on which they are currently working, drawing attention to any particular problems or interesting points. These meetings provide counsel with opportunities to share their experiences and views on a regular basis.

 

In-house workshops and seminars

In-house talks and workshops are regularly held for the sharing of drafting skills. Since January 2011, 11 in-house talks and workshops have been held for counsel of the division. Those sessions covered a wide range of topics, including legislative drafting in Chinese, statutory interpretation, human rights, international law, the formulation of offence provisions and the implementation of recommendations made by the Law Reform Commission.

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  Elizabeth Grindey
English Legislative Editor, Law Drafting Division
   
   

Elizabeth Grindey joined the department at the end of 2009 in the newly created post of editor of English legislation. Elizabeth has a professional background in English and personal background in Hong Kong. She spent her childhood years here before leaving for school in England. In 1991, she graduated with an honours degree in English from Lancaster University with a foundation in linguistics, textual critical analysis and English literature.

Elizabeth returned to Hong Kong in 1997 and joined the British Council, where she taught grammar and advanced level classes, gaining some familiarity with common errors in Hong Kong English. In 2003 she began working with Pearson Longman publishers, co-writing a series of English-language text books for Hong Kong secondary schools.

From 2004 to 2008 Elizabeth was editor of Positive News, an international magazine with a Hong Kong edition which reported on, and promoted awareness of, green and sustainability issues, especially amongst local schools. Alongside this, Elizabeth was involved in Hong Kong’s burgeoning organic movement, helping to establish two vegetarian restaurants. She moved into specialised editing of academic texts, including for the City University and the Asia Art Archive, before taking up her present post in the Law Drafting Division.

Elizabeth is sure that the fact she has no background in law has been a valuable asset “It’s given me the opportunity to approach, with a beginner’s mind and without preconceptions, the tricky task of articulating the law in plain English. I’ve also become something of a sounding board for drafters as to how ordinary citizens might understand our laws”, she says. As a legislative editor, Elizabeth gives linguistic support to drafters, both native-English speakers and native-Chinese speakers. “As well as researching complex grammatical issues, my role involves teasing out matters of style and convention from grammatical rights and wrongs. No easy task given how much grammar itself has changed in the last 30 years!”

Elizabeth thinks it is a stimulating time to be working in the Law Drafting Division, as the division has been modernising its practices across the board to improve accessibility to Hong Kong’s laws. “I work with drafters to bring a plainer style of language into our laws to make them more readable to non-lawyers. I think this important task is summed up by the Irish poet WB Yeats: ‘Think like a wise man but communicate in the language of the people.’”

 
   

 

   
  Peter Sze Chun-fai
Government Counsel, Law Drafting Division
   
   

On finishing his LLB and PCLL studies at the University of Hong Kong, Peter Sze joined the department as a legal trainee in 2007 and, after his admission as a solicitor in 2009, stayed with the department as a Government Counsel in the Law Drafting Division.

Despite the relatively short time since he joined the division, Peter has had the opportunity to be exposed to a wide range of work and experiences. Apart from drafting legislation in the two official languages, Peter has also assisted in various information technology initiatives, including an ongoing project to establish a legislation database of Hong Kong with a legal status. He also attended a conference of Commonwealth legislative drafters in Hyderabad and completed a legislative drafting course at the University of London, both in 2010.

“Legislative drafting is not as dull as one would usually think,” says Peter. “There are always new policy initiatives that need to be achieved through legislation, and you can make a difference by helping build a comprehensive framework within which our society functions and evolves.”

Outside work, Peter is a very amateur player of badminton, softball and er-hu. He also enjoys spending his spare time hiking and volunteering. While most of these activities are done with his fellow Castlers (residents and alumni of University Hall, the residential hall at which Peter stayed while an undergraduate at HKU), Peter is particularly pleased to have volunteered with his colleagues in the department to take part in an elderly home visit organised by the department’s Staff Club .

 
   

 

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