1
Confidential
2.
I also wonder whether, in the light of section 4, the word 'Notwithstanding' might not cause a problem although it is otherwise helpful. I would need to reflect further on this and consider other possibilities such as 'without prejudice to'. I think the words 'of Hong Kong' should be added after 'general revenue' and I also think the words
any such payment to HMG in the UK as he may deem fit' might perhaps be replaced by the words 'any such payment to the Government of the United Kingdom as he may consider necessary'. But these are points of detail.
As
3. You ask me whether it is possible to legislate by Act of Parliament rather than by Order in Council so as provide for the future entitlement to pensions of members of HMOCS to be met from the general revenue of Hong Kong. mentioned in paragraph 1 of this minute, section 4 of the Public Finance Ordinance 1983 read with section 3 of the Interpretation and General Clauses Ordinance 1966 makes it clear that for the purposes of section 4, the legislation for the purposes of charging expenditure on the general revenue of Hong Kong could be an Act, Order in Council, Letters Patent or Royal Instructions or any rule, regulation, etc. The choice of which instrument to use is in part a legal one and in part a political one.
4.
It would, of course, be possible to legislate by Act of Parliament rather than by prerogative Order. The Application of English Law Ordinance 1966 (I only have the version amended up to 1971) provides that an Act may be applied to Hong Kong by virtue of an Order in Council, an Ordinance or any express provision in the enactment or by necessary implication. For present purposes the Act would have to make it clear that it applied to Hong Kong either expressly or by necessary implication. However, proceeding by an Act of Parliament seems to be a heavy-weight and cumbersome means of legislating in this matter, quite apart from increasing the chances of political debate.
5.
In my minute of 14 January, I also referred to the possibility of issuing Royal Instructions or amending the Letters Patent. Perhaps I might be allowed to expand on these options. An amendment to the Letters Patent is best kept for an amendment of a general constitutional nature. The present matter is not one of a general constitutional nature; it involves making provision for the special one-off cases of the HMOCs. As to Royal Instructions, these may be legislative or administrative in nature, but when legislative, they are usually used to supplement another instrument eg Letters Patent. A prerogative Order in Council is likely to be the legally most satisfactory means of achieving the necessary end, assuming that the normal route, an Appropriation Ordinance, is politically out of the question.
QQ M
AELACE