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So far as I can see there are 28 points, (including the 8 which have been discussed with the
Governor) arising directly out of the Governor's despatch which we have to consider. To facilitate the consideration of these points, I have prepared a summary of them attached at No.
I attach
a spare copy for your use. You will see that the summary gives also the Governor's comments in the case of the first 8 and remarks in the case of all the points which contain my views as to the action to be taken on them.
Perhaps we could discuss those points which concern you and any others which you think ought to be taken up at this stage from the legal aspect. It would I feel be useful if, in the open reply which is to be sent to the Governor's despatch (both of which are to be published) we could indicate that we shall be sending the Governor copies of Ordinances constituting Municipalities in other territories in case they might assist in preparing the necessary legislation for the Hong Kong Municipality. I suppose we might also say something about the amendment of the instruments to give effect to the changes in the Legislative Council.
There is one point not covered by the above, namely, the question of some one flying down to Singapore to obtain information about the Constitution and working of the Municipal Council there. I think this point might be taken up later when we have disposed of the 28 points plus any others which you think ought to be taken now.
by Marylan
11.4.47.
The most important aspect of these proposals
is of course the matter of the functions of the Council. There are many references to "transfer" of functions. If the intention were that the
surrender). Legislature should certain powers and
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vest them in the Municipal Council, they would certainly need the authority of Letters Patent or an Order in Council to do so. It is clear, however, from para. 42 of the Governor's despatch of the 22nd October, 1946, that that is not the intention. The word "delegate" will be a very much better one to
use.
Paragraph 42 raises some other important points.
The Governor suggests that powers should be transferred to the Municipality by Order in Council. There is an important legal principle expressed in the phrase "delegatus non potest delegare". This does not prevent a Legislature, to whom the King has delegated powers of legislation, creating a subordinate authority with power to make by-laws, rules, regulations, etc. But if the general intention is that, when powers are delegated to the Municipality, the Legislature itself should cease activity in the field of the delegated functions, I very much doubt whether it is desirable for the Legislature to hand over the power of delegation to the Governor-in- Council, thereby. creating, as it were, a sub-delegation.
/AS