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Law-making empowerment explained

It is a long-standing practice in the common law system for the legislature to empower the executive authorities to make subsidiary legislation for the effective implementation of the requirements of the primary legislation, Secretary for Security Tang Ping-keung said.

 

He made the statement in response to media concerns over the empowerment of the Chief Executive-in-Council to make subsidiary legislation on safeguarding national security in the amendments to the Safeguarding National Security Bill.

 

While further explaining the issue, Mr Tang emphasised that the power to make subsidiary legislation is under effective checks and balances, and members of the public do not need to be concerned.

 

The security chief pointed out that it is a common practice in the common law system to leave detailed and technical matters of the primary legislation to be set out in subsidiary legislation. 

 

Such matters involve implementation details, administrative matters, matters which require the executive authorities’ continuous review and improvements or which need timely enactment or amendments.

 

Other jurisdictions, such as the UK and the US, also have a similar practice, Mr Tang added.

 

It is also very common in Hong Kong legislation for the Legislative Council to delegate power to the executive authorities to make subsidiary legislation for the effective implementation of the primary legislation.

 

Since January 1, 2024, more than 20 pieces of subsidiary legislation have been made. One such example is the Road Traffic (Autonomous Vehicles) Regulation under the Road Traffic Ordinance.

   

Mr Tang said comprehensive measures to safeguard national security require the empowerment of the executive authorities to formulate implementation details and administrative matters. Moreover, national security risks can emerge all of a sudden and cannot be predicted at the moment.

 

By empowering the Chief Executive-in-Council to make subsidiary legislation to set out the implementation details, as required by the National Security Law and its interpretation, as well as the Safeguarding National Security Ordinance, the mechanism to safeguard national security can be implemented more effectively. The national security risks can be prevented and addressed timely.

 

Mr Tang also noted that subsidiary legislation has to be made in accordance with the requirements of the primary legislation and its content must not exceed the scope of the matters regulated under the primary legislation.

 

The Interpretation & General Clauses Ordinance clearly stipulates that no subsidiary legislation shall be inconsistent with the provisions of any ordinance. 

 

Additionally, Mr Tang pointed out that subsidiary legislation will be laid on the table of the Legislative Council for negative vetting in accordance with the Interpretation & General Clauses Ordinance.

 

“The Legislative Council can, by resolution, make amendment to or even repeal the subsidiary legislation. Therefore, the power to make subsidiary legislation is under effective checks and balances.”


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