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The Role of the Clerk to the Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China

By:
K.S. Law
Deputy Secretary General
Hong Kong Special Administrative Region of the People's Republic of China

Volume 6, Number 2 Fall 2000

The International Role of the Clerk
The following three articles are based on presentations by the authors on July 16, 2000, at the annual meeting of the National Conference of State Legislatures held in Chicago, Illinois.

The Role of the Clerk to the Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China

By: K.S. Law
Deputy Secretary General
Hong Kong Special Administrative Region of the People's Republic of China

Hong Kong has been part of China since ancient times. It was ceded to Great Britain after the Opium War in 1840, and was a British colony until 1997 when the People’s Republic of China resumed the exercise of sovereignty over it.

In view of Hong Kong’s relationship with Britain before 1997, the procedure and practice adopted for the Legislative Council by and large followed those used in the House of Commons of the British Parliament. Against this background, the role of the Clerk to the Legislative Council in Hong Kong is very similar to that of the Clerk of the House of Commons, except that the former also has to take on the role of the Sergeant at Arms of the House of Commons.

The Clerk to the Legislative Council

The Clerk is appointed by a statutory body called The Legislative Council Commission, which comprises 13 Members of the Legislative Council. Apart from the Chairman, who is the President of the Council, the remaining 12 members are from the various political groupings in the Council. The Commission has the statutory duty to set up a Legislative Council Secretariat to provide service for the Council. The Clerk is the Secretary General of the Secretariat.

Role of the Clerk
Parliamentary duties under Rules of Procedure
As the chief procedural officer, the Clerk provides advice on all procedural matters, including practice and traditions of the Council for the President and Members of the Council. Under the Rules of Procedure, which are commonly called Standing Orders in some other legislatures, the Clerk is the one who receives the notices of Council business that is to be transacted at Council meetings. For example, when a Member wishes to move a motion in Council, he has to give 14 clear days’ notice to the Clerk who will, subject to the approval of the President, arrange for the motion to be placed on the agenda for the meeting concerned. On the basis of the notices received, the Clerk prepares and issues the agenda for each meeting of the Council. Papers that are to be tabled in Council, including bills, are distributed by the Clerk.

The Clerk has to be present at all meetings of the Council to assist the President and Members in conducting the business of the Council. After each meeting, he is required to produce the Official Records of Proceedings of the Council. He is also responsible for the custody of all Council records, including bills, votes, and all the papers that have been tabled in Council.

Another of the Clerk’s parliamentary duties as laid down in the Rules of Procedure is to maintain a Register of Members’ Interests. Every new Member of the Council has to, not later than the first meeting of each term, furnish the Clerk with particulars of his registrable interests. The Clerk has to enter such declared interests in a register and also arrange for the register to be available for inspection by any person.

Parliamentary duties under the law
There are duties that the Clerk has to perform under the law. After each general election, it is the Clerk who administers the oaths of all Members. However, after the President of the Council has been elected, then new Members take their oaths before the President.

Under the Legislative Council (Powers and Privileges) Ordinance, a witness giving evidence in a public inquiry conducted by the Council or a committee of the Council is protected by what we commonly refer to as parliamentary privilege; that is, he is entitled to the same rights and privileges as before a court of law. However, the witness can enjoy such protection only if he is ordered to attend before the Council or a committee by summons; a witness appearing before the Council or a committee on a voluntary basis does not enjoy such protection. It is the duty of the Clerk to issue such a summons to order the attendance of a witness to give evidence — not so much to compel his attendance, but rather to accord him with the protection mentioned above. However, in the event that a witness refuses to attend before a committee despite having been ordered to do so by a summons, it is also the duty of the Clerk to issue a warrant to apprehend that person and bring him before the Council or committee concerned.

After each election, a Member-elect may give written notice to the Clerk of non-acceptance of office within seven days after the date on which notification of the person’s election is published in the Gazette. Having received such a written notice, it is the statutory duty of the Clerk to publish in the Gazette a notice to the effect that the person has not accepted office as a Member. In addition, whenever there is a vacancy arising in the membership of the Council for whatever reason, the Clerk has the duty to declare the existence of the vacancy by notice published in the Gazette.

Role as Sergeant at Arms
In view of the small membership of the Legislative Council in Hong Kong, the duties that are performed by the office of what is commonly called Sergeant at Arms in other legislatures are also performed by the Clerk in Hong Kong. Assisted by a team of security staff, the Clerk has the overall responsibility for ensuring that the members of the public and the press are admitted to their respective galleries to observe as spectators the proceedings of meetings of the Council and its committees. He is also responsible for maintaining order in the public and press galleries.

On the other hand, in the event of a Member being ordered by the President of the Council to withdraw from a meeting, the Clerk has to act on such an order. It should be pointed out that there has been only one such incident in the entire history of the legislature in Hong Kong, and the withdrawal order was complied with by the Member concerned.

Role as an administrator
Under the law, the Clerk to the Legislative Council is the same person as the Secretary General or the chief executive of the Legislative Council Secretariat. There are the following nine divisions in the Secretariat:

(a) Administration Division;
(b) Complaints Division;
(c) Council Business Division 1;
(d) Council Business Division 2;
(e) Council Business Division 3;
(f) Legal Service Division;
(g) Public Information Division;
(h) Research & Library Services Division; and
(i) Translation and Interpretation Division.

Apart from the Legal Service Division, which is headed by the Legal Adviser, the Secretary General directs all the activities of the Secretariat and ensures that the Council and all the committees receive the high standard of support and service that a legislature deserves.

The Legislative Council Commission receives funding on an annual basis from the Government to pay Members’ remuneration and reimburse Members’ expenses, as well as to meet the expenditure of the Legislative Council Secretariat. The Secretary General is under the law the Controlling Officer of this subvention, and as such he is responsible and accountable for all the expenditure under this subvention.

Concluding Remarks
The Clerk to the Hong Kong Legislative Council and all of the staff in the Legislative Council Secretariat are employed by The Legislative Council Commission which is supposed to be, and indeed has been, a nonpartisan body. The Clerk and his staff are therefore in a position of serving the Council and its committees without fear and favour, and in a nonpartisan and impartial manner. This is the lynchpin of the culture of the Legislative Council Secretariat of which all the staff has become extremely proud.

Since 1997, the Legislative Council Secretariat has served the Provisional Legislative Council and the first term of the Legislative Council, which has just ended. Although the Rules of Procedure of the Council have been amended to incorporate some of the provisions in the Basic Law, which is a constitutional document prescribing the system to be practised in Hong Kong, the roles of the Clerk and the Legislative Council Secretariat have remained the same as those before the reversion of Hong Kong’s sovereignty to China in 1997.

(For information on the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China and the Legislative Council Secretariat, please visit www.legco.gov.hk).

For more information about ASLCS, write or call:

Sally Kittredge
National Conference of State Legislatures
1560 Broadway, Suite 700
Denver, CO 80202
Phone: 303/364-7700
FAX: 303/863-8003
E-mail: sally.kittredge@ncsl.org