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8.5
8.4.2
Other forms of prerogative instruments are Letters Patent, Royal Instructions, Proclamations and Royal Charters. Legal Executive Branch hold the instructions for the preparation of these instruments and should be consulted as soon as a draft of the instrument is ready for printing. These instruments are drafted by the Legal Advisers in consultation with the Law Officers of the Territory concerned. The desk officer of the relevant DT geographical Department should make sure that all interested parties see the draft and have sufficient time to comment on it before it is finalised.
8.4.3 The most important instruments made on behalf of DTs are those containing a new Constitution or amending a Constitution already in force. These are usually in the form of an Order-in-Council, but in some Territories (eg Hong Kong) take the form of Letters Patent.
8.4.4
8.4.5
Proclamations requiring vetting by the FCO are normally only used to amend the coinage of DTs. Royal Instructions (see example at Annex 12) are Her Majesty's Instructions to OAGs in which they are informed of their duties and powers. Royal Charters are granted to institutions such as Universities but are very rare.
Statutory Instruments are always given a privacy marking until they have been made. If the statute under which they are made requires them to be laid before Parliament, they are given a privacy marking until they have been so laid.
8.5
8.5.1
8.5.2
8.5.3
CONSTITUTIONAL INSTRUMENTS
Draft Instruments cannot be publicly discussed or published. Acts of Parliament sometimes require a draft Order in Council to be laid before Parliament and make it subject to positive or negative resolution. This involves a departure from the principle of non-publication, but in each case there is specific statutory authority for the publication and Parliament can vary Constitutional Conventions. Sometimes, constitutional proposals are published in the form of draft clauses taken from the actual text of a draft Order but omitting its preamble. This practice is questionable and should not be adopted in relation to the constitutions of DTs.
It is incorrect for Government announcements, eg about new constitutions in DTs, to state categorically what is going to be done. Not only would it be difficult, if not impossible, to alter any item of the proposals without political problems, but also apparent uncertainty as to HMG's intention might be misinterpreted. This may well involve difficulty in the drafting of such announcements, especially when the constitutional changes are the outcome of prolonged discussions with those concerned in the DT. Statements on Government policy, however, should be framed either as proposals or in terms which can be construed as decisions as to the advice to be tendered to The Queen. For example, it is improper to announce that "the number of elected members in the Legislature will be increased from X to Y": it is proper to state either that HMG proposes that the number of elected members should be increased etc, or to state that the political leaders in the DT "have asked that the number of elected members should be increased, etc, and HMG agree".
It may be difficult to limit the number of people concerned in the preparation of draft Instruments; but copies must always be supplied in strict confidence, whether or not the main
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