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In view of the positive support given by the House of Lords to the requests of the Hong Kong Legislative Council we are dismayed to have learned recently of the possibility that matters of convention may now oblige individual members of the Lords to
the draft Order if it is approve
the approved by
House of
Commons.
During the passage through Parliament of the Hong Kong Act 1985 Unofficial Members of the Hong Kong Legislative Council noted with concern that subsidiary legislation would be used to amend the substance of the law, including the nationality law. They were, however, assured by the Hong Kong Government that the subsidiary legislation would be subject to Parliamentary scrutiny and that the general acceptability of the draft Order would be established before it was put forward to Parliament.
It was on this basis that the concerns of Unofficial Members of the Legislative Council regarding the use of subsidiary legislation were allayed with Unofficial Members believing that the draft Order would be subject to the affirmative resolution procedure in both Houses in a real sense, rather than relegating the role of the Lords to one of passive endorsement of the decision of the Commons.
Whilst recognising that it is for the House of Lords to decide upon the circumstances in which it is right to exercise its power of disapproval of subsidiary legislation such as this Order in Council, may I ask you,
ask you, when exercising your personal decision, to take into account the above and also the following
(a)
(b)
The nationality provisions in question are clearly of sufficient constitutional importance to justify their subjection to the normal legislative process for primary legislation. However the Government has chosen to classify the provisions as subsidiary legislation, thereby enabling it to make use of a procedure which deprives the House of Lords of the power to make amendments.
In such circumstances, since an important matter of principle is raised by the provisions of such subsidiary legislation, is it not unconscionable that the House of Lords should be disabled from giving effective expression to its collective views when the Question
on the Motion for approval is put?