TNAG-1442-FCO40-1926-Constitutional-development-in-Hong-Kong-1986 — Page 159

XCC (86) 25

The reasons for subsidiary legislation

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been:

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(a)

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3

The reasons for delegating legislative power have

pressure on the Legislative Council's time;

(b) limitation of aptitude: many examples of subsidiary legislation deal with highly technical subjects involving, for example, a detailed knowledge of trade marks, designs, poisons etc. These items may be beyond the technical competence of the Legislative Council;

it is often

(c) emergencies: in emergencies

necessary for legislation to be enacted quickly and for there to be flexibility;

(d) need for flexibility:

considerable

e.g. frequent

amendments to the interest rate to be paid on Tax Reserve Certificates, of which there were 11 in 1984;

(e) unforeseen contingencies:

the Legislative Council cannot be expected to foresee all of the likely contingencies. In a large and complex scheme, there are likely to be many contingencies: any attempt to set out such

scheme in primary legislation (i.e. Ordinances) will not only tie up the Legislative Council's time and expertise during the passage of the bill but also in the many amendments that will be likely as the scheme is put into practice.

a

The reasons equally apply when considering whether the power to amend subsidiary legislation or even primary legislation (particularly schedules thereto) should be delegated and to where it should be delegated.

The control of subsidiary legislation

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Apart from control by the courts, which is dealt with in paragraph 12 below, the making of subsidiary legislation in Hong Kong is controlled in two ways; firstly over the policy and drafting of subsidiary legislation and secondly by the Legislative Council at or shortly after the moment when it

becomes law.