TNAG-0432-FCO40-497-Administration-of-government-of-Hong-Kong-1974 — Page 11

Foreign and Commonwealth Office

London SW1

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Sir Murray MacLehose KCMG MBE

HONG KONG

Telephone 01-

Your reference

Our reference

Date 3 April 1974

LAST

REF.

Dear Murray,

POST OF ACTING COLONIAL SECRETARY

1.

NEXT

REF.

I have consulted the Legal Advisers and Under-Secretaries about your letter of 15 March. We agree with you that the ripple effect of acting appointments is normally unnecessary and could be undesirable. We see no constitutional obstacle to the solution you propose. We agree with you that the objections on your page 3, which were raised by the Attorney-General, need not be overriding in normal circumstances. I also agreed this with Hobley himself when he came into the Office briefly last week.

2.

In fact our consideration of the constitutional position suggests that, in certain circumstances, the arrangements you propose may not only be desirable but also inescapable. Under the Letters Patent you can, under Article XVIIA, appoint a Deputy for a short period, which our Legal Advisers think should not be more than three or four weeks. There is nothing to prevent this Deputy from holding another office concurrently. If he is the Colonial Secretary he can therefore go on with that job or not, as you choose, while he is acting as your Deputy.

3.

But if you expect to be away for longer than three or four weeks, an Acting Governor would have to fill your place under Article XVII. In the absence of designation under Article XVII(1)(a) the Acting Governor would have to be the person "lawfully discharging the functions of Colonial Secretary" under XVII(1)(b). Our Legal Advisers consider that this means that the Colonial Secretary would have to continue to discharge his functions as such, as well as acting as Governor.

4.

For your present purposes this would appear to be the right conclusion. But if, for any reason, you do not want the Colonial Secretary to hold both jobs while you are away for a given extended period, the remedy is to hand in Article XVII(1)(a); since it is there possible to designate someone other than the Colonial Secretary, or to designate him by name, leaving it open for somebody else to discharge the functions of his substantive office.

CONFIDENTIAL

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