Organisation chart of the Law Drafting Division
8th - 9th floors, High Block, QGO
Enquiries : 2867 2310
Fax : 2869 1302
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.
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.
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.
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.
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.
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.
Counsel 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.
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.