However, as she knows, the HKSN is not comparable to either of these organisations.

It does not have a regulatory function under either the present appointment system for notaries public, or the new locally-based appointment system proposed in the bill.

Under the new system, the appointment and disciplining of notaries public will be the responsibility of the Chief Justice.

As the HKSN's role under the new locally-based appointment for notaries public will be advisory and not regulatory, the administration sees no compelling reason why membership of the HKSN should be made mandatory. As Miss Ng admits, Article 22 of the International Covenant on Civil and Political Rights (ICCPR) protects freedom of association, and by extension freedom of non-association.

The Bills Committee apparently considers that this freedom should be restricted by the mandatory membership requirement, on the grounds that otherwise there is a risk of HKSN becoming ineffective. With the greatest respect, it does not seem to us that this is a sufficient justification for restricting a right guaranteed by the International Covenant on Civil and Political Rights (ICCPR). If the HKSN performs a useful service to notaries public in Hong Kong, then individual notaries public will wish to be members of it. We do not see why they should be forced to be.

Since in our view compulsory membership of the HKSN is not 'necessary' in the interests of the public, as opposed to the interests of the HKSN itself, this proposed amendment would, if enacted, run the risk of a challenge against its validity under Article VII(5) of the Letters Patent. It is of course up to the court to decide whether legislation is inconsistent with the ICCPR and thus the Letters Patent. However, it would clearly be irresponsible for the administration to proceed with legislation that we believe is open to challenge, especially when such a challenge would likely be against disciplinary action taken by the Chief Justice. That is why we have said that we should have no option but to withdraw the bill if the Bills Committee's amendment is passed.

In reaching this decision, we recognise that, given the limited time available, it is unlikely that any other locally-based system for appointing notaries public can be put in place before July 1. We have considered the possible consequences of a gap in the appointment of notaries public and have come to the view that these are less significant than the dangerous precedent of enacting legislation that we know is vulnerable to challenge in the courts.

This does not mean, as Miss Ng states, that no new notaries public will be appointed after June 30, 1997. The Special Administrative Region (SAR) Government will of course be free to draw up its own procedures after that date.

We regret that the Bills Committee's insistence on putting forward its mandatory membership amendment has led to this situation, but I hope it is clear from the above that the administration has not, as Miss Ng claims, failed in its duty towards the public.

On the contrary, we have responsibly put the overall public interest above a sectoral interest. I hope that Legco members will do the same when the second reading of the bill is resumed.

R.J.F. HOARE Director of Administration