CONFIDENTIAL
FM FCO
TO IMMEDIATE HONG KONG
TELNO 440
OF 17150OZ FEBRUARY 89
CONFIDENTIAL
HKB 011/3
SE
126664
MDHOAN 5303
TOP COPY Q DIST ?
INFO PRIORITY PEKING, BTC HONG KONG, UKREP JLG HONG KONG
PERSONAL FOR GOVERNOR FROM PAUL, HKD PERSONAL FOR BIC HONG KONG MR HOLLOWAY
36
41
MY TELNO 325 AND YOUR TELNO 392: FAC ENQUIRY INTO HONG KONG.
1.
FOLLOWING THE COMMENT IN THE LAST SENTENCE OF PARAGRAPH 2 OF SECOND TUR THE LEGAL ADVISERS HAVE NOW HAD AN OPPORTUNITY TO LOOK MORE THOROUGHLY AT THE PRELIMINARY ADVICE CONTAINED IN THE FIRST TUR.
2. THEY HAVE AGAIN REACHED SIMILIAR CONCLUSION.
ARE AS FOLLOWS:
THE KEY POINTS
(I) AS A MATTER OF CONSTITUTIONAL LAW, DEPENDENT TERRITORY LEGISLATURES ARE SUBORDINATE TO THE LEGISLATIVE COMPETENCE OF THE UK PARLIAMENT WHICH RETAINS AN INHERENT AUTHORITY TO LEGISLATE FOR THE DEPENDENT TERRITORIES.
(II)
EVEN THOUGH A CERTAIN DEGREE OF LEGISLATIVE COMPETENCE HAS BEEN DEVOLVED TO THE GOVERNMENTAL AUTHORITIES OF DEPENDENT TERRITORIES, THE SECRETARY OF STATE RETAINS ULTIMATE RESPONSIBILITY FOR ALL AREAS OF GOVERNMENT IN DEPENDENT TERRITORIES AND IS ANSWERABLE TO PARLIAMENT IN RESPECT OF THEM. (III) OFFICIALS OF GOVERNMENTS OF DEPENDENT TERRITORIES CAN BE REQUIRED TO ATTEND WESTMINSTER TO GIVE EVIDENCE RELATING TO MATTERS FALLING WITHIN THE TERMS OF REFERENCE OF THE FOREIGN AFFAIRS COMMITTEE. THEY CAN ALSO BE REQUIRED TO ATTEND SESSIONS OF THE COMMITTEE HELD IN DEPENDENT TERRITORIES. WE HAVE CONSIDERED WHETHER THERE IS A VALID COUNTER-ARGUMENT WHICH MIGHT RUN AS FOLLOWS. EVEN THOUGH THE JURISDICTION OF PARLIAMENT IS ABSOLUTE, PARLIAMENT COR IN THE CASE OF HONG KONG THE CROWN) HAS, IN ESTABLISHING A CONSTITUTION FOR THE TERRITORY, DEVOLVED IMPORTANT MATTERS TO IT, AND THE FAC SHOULD NOT QUESTION THE DEPENDENT TERRITORY'S CIVIL SERVANTS ON THOSE DEVOLVED MATTERS. THIS WOULD NOT BE AFFECTED, THE ARGUMENT MIGHT RUN, BY THE FACT THAT PARLIAMENT (OR THE CROWN) HAS POWER TO TAKE BACK RESPONSIBILITY FOR THE MATTERS DEVOLVED. LEGAL ADVISERS HAVE CONCLUDED, HOWEVER, THAT SUCH AN ARGUMENT IS NOT SOUND. AS INDICATED IN (II) ABOVE, THE SECRETARY OF STATE HAS ULTIMATE
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