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3. A matter of more significance has been disclosed by my
consideration of Sir P Haddon-Cave's letter and the present draft.
Although the Hong Kong Letters Patent provide for a reserved
power of legislation by the Crown, there is no reserved power of
legislation by the Governor. Roberts-Wray describes this
power as follows:
"In a legislature with an official majority, the
United Kingdom Government was in a position to
exercise positive control over legislation by
ensuring that official members voted in accordance
with their instructions. Where the legislature has
a majority of unofficial members, if positive control
is required the practice has been to vest in the
Governor a reserved power working through the
ordinary legislative machinery.
TE
This is by no means an archaic power or power inserted in
primitive constitutions but a provision designed to enable the executive to legislate in exceptional and necessary cases. I attach 3 photostats (Gibraltar 1950, Singapore 1955 and
Turks and Caicos 1976) which illustrate the kind of provision
that is made. Mr Aust tells me that a reserved legislative
power is included in the latest draft of the Falkland Islands
constitution.
Fue. 1984.
4.
Such a provision should have been made for Hong Kong and
included in the Letters Patent when the unofficial members first
outnumbered the official members and the case for including it
is the stronger now that elected members are to be introduced
into the legislature. It may be considered a necessary power in order to enable the United Kingdom to exercise its
responsibility of administration as provided by paragraph 4 of
the Joint Declaration if there are circumstances in which it
is necessary, eg either for financial reasons or for security reasons, to legislate
notwithstanding the reluctance
of appointed or elected members. It is true that the Crown's
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/reserved