E.R.
CONFIDENTIAL
I now come to the matters on which a Treasury view would be appreciated:
(a) how and by whom should the fees be determined?
(b)
and
what principles should we apply in working out a fee structure?
As to (a) the most sensible option would seem to be to leave the determination of the fees to the Governor of Hong Kong by means of a local Hong Kong fees ordinance. Such ordinances are, I believe, approved by the Hong Kong Legislative Council but would not require the approval of Parliament. This is what currently happens in relation to applications in Hong Kong for BDTC and BNO status. My colleagues in the Hong Kong Bill Unit will be checking, when they visit Hong Kong next week, whether Hong Kong law would empower the Governor to set and collect fees for present purposes. Subject to that, however, we would envisage providing him with such a power by inserting a clause in the Bill.
The case for this approach is that the costs will be incurred entirely in Hong Kong, and 95% or more of them will be incurred by the Hong Kong Government. The small element of UK Government costs could be covered by a further clause in the Bill requiring the HKG to reimburse the UK Government. Presumably we would work out in advance with HKG an agreed formula for calculating the sum to be transferred. On this approach there would, I take it, be no occasion for making it a requirement to obtain Treasury consent to the fees.
Would you see any difficulty in this approach? It might I suppose be argued that, since the fee set by the Governor would be calculated to cover the small element of UK Government costs as well as the costs of the HKG, applicants would in effect be paying a fee to the Secretary of State, albeit indirectly. The fact that the end product will be a grant of British Citizenship by the Secretary of State (as represented by the team of UK officials in Hong Kong), rather than by the Governor acting under delegated authority, may also be thought to be relevant. Are Treasury aware of any rule or convention to the effect that fees paid even indirectly to the Secretary of State must invariably be tabled by him for Parliamentary approval? Given the circumstances in this case would Parliament in practice be likely to object to the fees being set in Hong Kong?
The alternative would be to apply, or provide a clause along the lines of section 41(2) of the British Nationality Act 1981, empowering the Secretary of State to impose application and registration fees by means of regulations made under the negative resolution procedure. Unlike fees currently prescribed under Section 41(2), however, fees under the Bill would, of course, go mainly to cover costs incurred by the Hong Kong Government. There would, again, need to be provision for the HKG to reimburse the UK Government for its costs or for the fee revenues to be shared between the two
-
CONFIDENTIAL