TNAG-1101-FCO40-1351-Legislation-on-homosexuality-in-Hong-Kong-including--Report--1981 — Page 588

1.

SECRET

A Paper on the Question of Revision of the Terms of Reference of the MacLennan Commission

The powers under the Ordinance :

follows :

ANNEX

平

Section 3 of the Commissions of Inquiry Ordinance provides as

"The Governor in Council may specify the subject of the inquiry and may direct ...(c) what matters should be

-

outside the terms of reference of the Commission."

2.

What are the limits of this power ?

This Commission, like all statutory tribunals, is bound to

keep within its jurisdiction (i.e. its power to enquire into questions

for the purpose of making findings upon them). Its jurisdiction is

delineated by the terms of reference. Unfortunately, the terms of reference

have been vaguely expressed. Normally a Commissioner would, at the outset,

interpret his terms of reference and thereby remove the ambiguities.

Yang J. has refused to do this. If the Governor in Council was to issue

a direction under Section 3(c) it could have effect in one of two ways,

viz; either it would clarify an existing ambiguity in the terms of reference

by identifying and removing an issue; or it could remove jurisdiction to

enquire into an issue presently clearly within the terms of reference. An

example of the former would be a direction that the question of the

Government's policies towards the employment of homosexuals in the Civil

Service is outside the terms of reference. An example of the latter would

be a direction that the involvement of the C.P. in the Yuen Long matter is

The power is essentially a clarification

outside the terms of reference.

of existing

SPCKET