TNAG-1366-FCO40-1812-Hong-Kong-Legislative-Council-(Powers-and-Privileges)-Bill-1-1985 — Page 123

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DRAFT SPEECH BY HON J J SWAINE, OBE, QC, JP

LEGISLATIVE COUNCIL

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12.6.85

Legislative Council (Powers and Privileges) Bill 1985

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

witnesses 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 Oaths and Declarations Ordinance, which is an umbrella provision of very wide scope. 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 Kong. 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

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