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Draft Hong Kong (Temporary Provisions) Order in Council.
I went to Parliamentary Counsel's Office this morning and discussed this draft with Sir J.Stainton and Mr.Chorley. I had to go without the file as it could not be traced, but it will, of course, have to be found before the following points can be fully considered. Parliamentary Counsel are critical of all our proposals.
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With regard to Defence Regulations, they ask what Defence Regulations we wish to make or amend. If we are concerned only with merchant shipping they are doubtful whether the Order is necessary. Mr. Chorley has discussed this with the Ministry of War Transport. In any case, they consider that any modification as regards Hong Kong or the Straits Settlements of the Emergency Powers (Colonial Defence) Order in Council, 1939, should be effected by a separate Order in Council.
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They had also discussed with the Ministry of War Transport the questions raised by that Department regarding the Merchant Shipping Acts, including the Load Line Convention Orders in Council. They said that the Ministry of War Transport have not really thought out exactly what they require, and in any case it is probable that an amendment of the Merchant Shipping Acts themselves, either by Act of Parliament or Defence Regulation (I am not sure which) will be required. In these circumstances the provisions of our Order regarding merchant shipping matters can, and should in their view be omitted.
4
Parliamentary Counsel felt very doubtful about the propriety of providing by Order in Council for the diversion of the Currency Fund to purposes which not intended. recognise that this is more a matter of policy than of law, but they suggested that in any case it is probable that an Act of Parliament will be necessary at the end of the war to put straight various matters in territories which have been occupied by the enemy, and they asked whether it would not be possible for moneys to be provided out of United Kingdom funds in order to defray the expenses for which the Department wished to use this Hong Kong fund. I understand that in any case we shall be unable to touch the funds of the Malay States, and I suppose some such arrangement will be necessary in their case.
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Without saying there would be anything actually illegal in the proposal that the Secretary of State should have general power by Order to amend Hong Kong legislation, Parliamentary Counsel do not like the proposal. It will be remembered that I expressed a similar view when the suggestion was first made. Presumably it would not frequently be necessary to exercise that power, and the proposal now is that whenever modification of a law is necessary it should be made by ad hoc Order in Council.
6
Parliamentary Counsel were at first prepared to agree with the general transfer of the powers of the Governor and other local officers to the Secretary of State, but in the course of our discussion we agreed that it is questionable whether this is desirable. In the first place, it would be a leap in the dark. We should not know exactly what we were doing, Mr. Chorley actually offered to look through all the laws of Hong Kong. In particular, retrospective operation of the transfer might lead to embarrassing problems. I referred to the fact that the Department wished, amongst other things, to take away the Governor's powers so that he could not legally exercise them under enemy pressure, but I was not able to say how much importance the Department attached to this.
Further,