TNAG-1365-FCO40-1811-Hong-Kong-Legislative-Council-(Powers-and-Privileges)-Bill-1-1985 — Page 90

Savaime

}

UMELCO RESTRICTED

DRAFT SPEECH BY HON J J SWAINE, OBE, QC, JP LEGISLATIVE COUNCIL - 12.6.85

Legislative Council (Powers and Privileges) Bill 1985

Sir,

I am able to support this Bill in the light of the amendments which will be made at the Committee Stage.

Of the provisions which remain, there can be no quarrel with those which seek to ensure freedom of speech and

debate in the Council or its committees. Nor can there be any serious quarrel with the principle that the Council and its

committees shall have power to compel the attendance of

wilnesses and to have them examined on oath, Such power would probably be implied anyway, and is in any event conferred by

section 4 of the Oathe and Declarations Ordinance, which is an umbrella provision of very wide acope. This is to be replaced by the specific provisions of Part III of the Bill. Disobedience and contempts are to be punishable as offences, but the power of punishment lies not in the legislature, but in the courts. I regard this as a necessary safeguard against the arbitrary use of power.

Clause 24 of the bill has been one of the most

controversial and has led to the comment that it places the

Legislative Council above the law. In the United Kingdom, where the legislature is sovereign, the doctrine of the separation of powers applies in its full vigour, and it has been held by the highest judicial authority that Parliament is truly master of its own house, and is not subject to control by

the courts. This unlimited immunity has never applied in Hong Rong. Because the Legislative Council is not a sovereign body, the immunity which it possesses from judicial enquiry is limited, and this is founded on the doctrine that only those

UMELCO BESTRICTED

Page 90Page 91

Sorrine - 2