Hong Kong leader’s powers to make subsidiary legislation in Article 23 law will help address risks swiftly, security minister says

The amendment gives the chief executive in council – the city leader acting after consulting the key decision-making Executive Council – to make subsidiary legislation “for the needs of” safeguarding national security.

Tang said on Friday that the subsidiary legislation would be subject to the scope of the main ordinance and denied that the city leader could introduce new restrictions and offences “randomly”.

In his latest statement, Tang said the delegation of these powers was an established practice for common law jurisdictions such as the United States and the United Kingdom.

He said that more than 20 pieces of subsidiary legislation had been drawn up in Hong Kong since the start of the year.

He cited the examples of the subsidiary legislation enacted by the transport minister for regulating licences and other matters for an autonomous vehicle pilot scheme, under powers set out in the Road Traffic Ordinance.

Hong Kong’s subsidiary Article 23 legislation ‘subject to scope of main law’

Another example was the subsidiary legislation from the Executive Council that increased licence renewal fees for massage establishments.

“Subsidiary legislation has to be made in accordance with the requirements of the primary legislation. Its content must not exceed the scope of the matters regulated under the primary legislation,” Tang said.

“The Legislative Council can, by resolution, make amendments to or even repeal the subsidiary legislation. Therefore, the power to make subsidiary legislation is under effective checks and balances.”

The domestic national security legislation is required under Article 23 of the Basic Law, the city’s mini-constitution.

The proposed law is designed to target five types of offences: treason; insurrection; theft of state secrets and espionage; sabotage endangering national security; and external interference. It is the domestic counterpart of the national security law Beijing imposed on the city in 2020.