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.
*HT WAS ON THIS BASINS THAT THE CONCERNS OF UNOFFICIAL MEMBERS
OF THE LEGISLATIVE COUNCIL REGARDING THE USE OF SUBS NDPARY
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 CHIRCUMSTANCES IN WHICH #T US RIGHT TO EXERCISE TS
POWER OF DISAPPROVAL OF SUBSIDIARY LEGISLATION SUCH AS THIS ORDER HN COUNCIL, MAY ASK YOU, WHEN EXERCISING YOUR PERSONAL DECISION,
TO TAKE #NTO ACCOUNT THE ABOVE AND ALSO THE FOLLOWING
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(A) 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.
(B) IN SUCH CIRCUMSTANCES, SINCE AN IMPORTANT MATTER OF PRINCIPLE IS
RAISED BY THE PROVISIONS OF SUCH SUBSH-DHARY LEGISLATION, IS IT NOT
UNCONSCHIONABLE THAT THE HOUSE OF LORDS SHOULD BE DISABLED FROM
GIVING EFFECTIVE EXPRESSION TO ATS COLLECTIVE WREWS WHEN THEY
QUESTION ON THE MOTION FOR APPROVAL HS PUT?
(C) THERE IS PRECEDENT FOR THE HOUSE OF LORDS DISAPPROVING AN ORDER
WHICH HAD ALREADY BEEN APPROVED BY THE HOUSE OF COMMONS. ON 18TH
JUNE 1968 THE SOUTHERN RHODESIA (U.N. SANCTIONS) ORDER 1968 WAS
DISAPPROVED BY A MAJORITY. DURING THE LORDS DEBATE ON THE ORDER
VISCOUNT DILHORNE PUT THE PRINCIPLE IN THIS WAY
-
''BUT ORDERS SUCH AS THE ONE WE ARE NOW CONSIDERING ARE A FORM OF
SUBORDINATE LEGISLATION, USUALLY USED TO FILL IN THE DETAILS OF A MEASURE CONTAINED IN A BILL APPROVED BY PARLIAMENT .... I HAVE
A GREAT REGARD FOR PRECEDENT ... HOWEVER THAT MAY BE. DO NOT
THINK THAT THE FACT THAT WE HAVE NOT REJECTED AN ORDER BEFORE IS
A VALID ARGUMENT FOR NOT REJECTING THIS ORDER NOW. FOR, AFTER ALL,
IT IS THE GOVERNMENT'S DECISION TO INTRODUCE THE CONTENTS OF THIS
ORDER IN AN ORDER AND NOT IN A BILL. HAD THEY INTRODUCED THE
CONTENTS IN A BILL NO ONE WHO KNOWS ANYTHING ABOUT OUR
CONSTITUTION COULD SAY THAT WE SHOULD HAVE BEEN ACTING IMPROPERLY IN:
PASSING AMENDMENTS TO HT, OR INDEED IN REJECTING THE BILL AT SOME
STAGE IT MIGHT HAVE BEEN ON SECOND READING OR AT THE END
(PARLIAMENTARY DEBATES (OFFICIAL REPORT, 5TH SERIES, HOUSE OF
LORDS VOL 293 P.375)).
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