Special Feature
Public Consultation: An Essential Step in the Legislative Process
Public Consultation: An Essential Step in the Legislative Process

Recent experience with Hong Kong’s Extradition Bill has demonstrated very clearly how important it is that the Government (or any other public authority) conducts a proper public consultation before any new laws are introduced, and before any existing laws are amended. Indeed, the same could be said for public policy initiatives more generally, even if they do not take the form of binding legislation. The Government itself seems to have acknowledged that the consultation process on the Extradition Bill was unsatisfactory, and there is little doubt that this was one of the initial factors that led to the public outcry over the Bill.  

So why is proper public consultation so important, and what does it consist of?

Proper public consultation is important because it has at least two major benefits:

  • It improves the quality of policy decisions. By inviting a wide range of views, it enables potential problems with the proposal to be spotted and addressed, thereby avoiding unintended adverse consequences. It also enables conflicting views to be identified, and provides the opportunity to seek to reconcile the conflicts. No matter how diligent and competent policy-makers may be, they cannot make policy decisions in a vacuum, and need input from businesses, consumers and other affected stakeholders before they make the decision. The end result is a more robust and widely-accepted piece of legislation, or other policy intervention. 
  • By providing greater transparency in the policy-making process, it eliminates uncertainty as to the intentions behind the proposal, and avoids potential misunderstandings and unnecessary concerns in this respect. If fully reasoned, and accompanied by a proper regulatory impact assessment (discussed further below), the proposal also stands a greater chance of being widely accepted by the public, even although it may adversely affect certain sectoral interests. Transparency is also important, to avoid giving the impression that the Government is trying to push through a particular law or policy without proper public scrutiny.

What is a proper public consultation? This article submits that there are three minimum requirements that should be met, concerning publicity, duration, and content. 

Regarding publicity, there should be a widely-publicised and prominent media release, accompanied by a published consultation paper inviting views on the proposal. Regarding the duration of the consultation process, the norm should be three months, as is currently usually the case in Hong Kong. Where there are exceptional reasons justifying a shorter consultation period, it is all the more important that the proposal be widely publicised, so that all interested parties have time to submit views within the compressed time frame, and the reasons for the exceptional urgency should be explained in the media release and/or consultation paper. One criticism that has been made of the Extradition Bill proposal, for example, is that the extremely short consultation period (less than three weeks, from 13 February to 4 March 2019) was neither sufficiently widely publicised, nor adequately justified.

As regards the content of the consultation process, the core element is the public consultation paper. This should contain, or be accompanied by, a full regulatory impact assessment (RIA) of the proposal, addressing the following issues:

  • What is the perceived public harm that the proposal is intended to address?
  • What is the precise objective of the proposal?
  • Are there alternative methods to the proposal in achieving the objective? If so, the costs and benefits of each of these methods should be assessed, and it should be demonstrated that the proposal put forward has the greatest net benefits. The costs and benefits of doing nothing should also be measured against those of the proposal. 

This Chamber has been advocating for several years the systematic use of RIAs for any new regulatory proposal in Hong Kong. At present, the use of RIAs is sporadic and inconsistent. Last year, the Chamber hosted a conference at which overseas experts provided the benefits of their experience in RIAs to a large audience of Hong Kong businesses and government officials. The Chamber will be hosting a follow-up conference on this subject on 23 September this year, and readers are warmly invited to attend (details can be found in the “What’s On” section of the Chamber’s website www.chamber.org.hk). 

Regarding the consultation process more generally, concerns have been expressed that (as with RIAs) the practice in Hong Kong is inconsistent between different government departments. It has been suggested that a centralised unit should be responsible for ensuring the consistency of consultation processes across government departments, as in the UK and Singapore.

In the meantime, the Chamber will continue to invite members’ views on relevant public policy initiatives through its various committees, and present their views to the Government and other policy makers.