https://orcid.org/0000-0002-9903-8628
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ABSTRACT
This case note examines the judicial controls on emergency powers established by the Hong Kong Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42. It argues that, despite the Court’s promises to the contrary, none of those controls offer a meaningful constraint on the Chief Executive in Council’s power to enact regulations under the Emergency Regulations Ordinance (Cap 241). It also observes that the Court’s flawed articulation of the judicial controls is of cautionary value for courts in the United Kingdom interpreting the Civil Contingencies Act 2004.
Acknowledgements
The authors are grateful to Professor Po Jen Yap for his comments on a previous draft.
Disclaimer
The usual disclaimer applies.
Correction Statement
This article has been corrected with minor changes. These changes do not impact the academic content of the article.
Notes
1 For the avoidance of confusion, the ‘Chief Executive of Hong Kong’ is the head of the Executive of Hong Kong (Hong Kong Basic Law, arts 43 and 56). When the Chief Executive of Hong Kong acts after consultation with the Executive Council, he or she is known as the ‘Chief Executive in Council’. References in this paper to ‘Chief Executive’ should be read as ‘Chief Executive in Council’.
2 ERO, s 2(2)(n).
3 ibid s 2(2)(g). This type of clause is also known as a ‘Henry VIII clause’.
4 [2020] HKCFA 42 (HKCFA) (Kwok Wing Hang).
5 ibid [37].
6 ibid [87].
7 ibid [1].
8 Prohibition on Face Covering Regulation 2019, ss 3(1)(a)–(d).
9 The Legislative Council is Hong Kong’s legislature; Hong Kong Basic Law, art 66.
10 See further n 23 below.
11 Hong Kong Basic Law, art 28; Hong Kong Bill of Rights, art 5.
12 Kwok Wing Hang (n 4) [55].
13 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (Court of Appeal of England and Wales (EWCA)) 228–229.
14 [1968] AC 997 (House of Lords of the United Kingdom (UKHL)).
15 Kwok Wing Hang (n 4) [55].
16 ibid [50].
17 ERO, Preamble.
18 Kwok Wing Hang (n 4) [50].
19 ibid [44]–[45].
20 ibid [51].
21 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 (UKHL) [32].
22 A v Secretary of State for the Home Department [2004] UKHL 56 (UKHL).
23 ibid [29], [78]–[81]. Notably, Lord Hoffmann was the only judge in Belmarsh who dissented as to whether (on the facts of that case) there can be said to exist an event ‘threatening the life’ of the nation and rejected the Government’s evidence that such an incident had existed: [94]–[97]. This may be said to stand in contrast to the judgment exhibited in the Kwok Wing Hang as to the relaxed degree of judicial oversight and limited scrutiny the HKCFA was prepared to articulate as a matter of principle.
24 Secretary of State for the Environment v Nottinghamshire CC [1986] AC 240 (UKHL) 248; R (Rotherham LBC) v Secretary of State for Business, Innovation and Skills [2014] EWHC 232 (Admin) (High Court of England and Wales) [68(iii)].
25 David Dyzenhaus, The Constitution of the Law: Legality in a Time of Emergency (Cambridge University Press 2006) 123.
26 Diggory Bailey and Luke Norbury (eds), Bennion on Statutory Interpretation (7th edn, LexisNexis 2017) 68.
27 ibid 511.
28 The predecessor to the Chief Executive before the resumption of Chinese sovereignty in Hong Kong: Adoption of Laws (No 32) Ordinance 1999 (Ord No 71/1999), sch 8.
29 Michael Ng, Shengyue Zhang and Max Wong, ‘“Who but the Governor in Executive in Council is the Judge”—Historical Use of the Emergency Regulations Ordinance’ (2020) 50 Hong Kong Law Journal 425, 447.
30 Kwok Wing Hang (n 4) [55].
31 Philip Sales, ‘Use of Power for Proper Purposes in Private Law’ (2020) 136 Law Quarterly Review 384, 397.
32 R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 (United Kingdom Supreme Court (UKSC)) [1].
33 ibid [20]–[23], [30]–[31].
34 Maurice Sunkin, ‘Padfield v Ministry of Agriculture Fisheries and Food [1968]: Judges and Parliamentary Democracy’ in Satvinder Juss and Maurice Sunkin (eds), Landmark Cases in Public Law (Hart Publishing 2017) 43, 54.
35 Padfield (n 14) 941.
36 Kwok Wing Hang v Chief Executive in Council [2020] HKCA 192 (HKCA) (Kwok Wing Hang (CA)) [133]. Upheld by the HKCFA: Kwok Wing Hang (n 4) [50].
37 See text to nn 19–20 above.
38 Padfield (n 14) 941.
39 Kwok Wing Hang (n 4) [55].
40 Po Jen Yap and Zixin Jiang, ‘Remedial Discretion and the Prohibition on Face Covering Regulation’ (2020) 50 Hong Kong Law Journal 569, 576.
41 T v Commissioner of Police (2014) 17 HKCFAR 593 (HKCFA) [48].
42 Kwok Wing Hang (CA) (n 36) [126]. Endorsed by the HKCFA: Kwok Wing Hang (n 4) [45].
43 Kwok Wing Hang (n 4) [50].
44 Kwok Wing Hang (CA) (n 36) [126].
45 CCA, ss 19(1)–(4).
46 ibid s 20(2)(a).
47 ibid s 21(2).
48 ibid s 21(3).
49 ibid s 21(4).
50 ibid s 21(2); ERO, s 2(1).
51 CCA, s 21(3); ERO, s 2(1).
52 Rodney Brazier, ‘Royal Assent to Legislation’ (2013) 129 Law Quarterly Review 184, 195–196.
53 R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 (EWCA) [75].
54 Michael Head, ‘Calling Out the Troops and the Civil Contingencies Act: Some Questions of Concern’ [2010] Public Law 340, 349.
55 Gabrielle Appleby and Joanna Howe, ‘Scrutinising Parliament’s Scrutiny of Delegated Legislative Power’ (2015) 15 Oxford University Commonwealth Law Journal 3, 4–5.
56 See text to nn 17–18, 42 above.
57 Kwok Wing Hang (CA) (n 36) [143]–[144].
58 See text to footnotes 17–18, 42 above.
59 Daniel Greenberg (ed), Craies on Legislation (12th edn, Sweet & Maxwell 2020) 22 [1.3.11].
Additional information
Notes on contributors
Thomas Yeon
Thomas Yeon is a holds a Postgraduate Certificate in Laws from the University of Hong Kong, and Diana Siu holds a Juris Doctor degree from the University of Hong Kong.