TNAG-1283-FCO40-1635-Constitutional-development-in-Hong-Kong-1984 — Page 137

CODE 18-77

ноже

Mr Hoare HKD

SECRET

---Reference.

HKK 011/3

RECEIVED IN VALLE TRY

-2 FEB 1984

ZEGISTRY

INDEX

A

Achon Taken

NO

Ru

26.

DRAFT WORKING PAPER ON CONSTITUTIONAL ARRANGEMENTS AND CENTRAL GOVERNMENT STRUCTURES

1. In your minute of 23 January you asked for comments on the draft working paper contained in FCO telno 94 of

20 January.

Para 2

The following points occur to me.

2. To take a small point first, I suspect that the phrase "it would contain such issues as" is a slightly unhappy translation from the original Chinese. I wonder whether it would be better to say "It would deal with such matters as".

Para 9

3. First, it is arguably misleading to suggest that the functions (even if limited by the adjective "specific") of the Chief Executive etc would remain unchanged with effect from 1 July 1997. The Chief Executive (ie at present the Governor) is for example required by the Royal Instructions not to assent to certain Bills without first seeking royal assent. This function would disappear in 1997.

4. Secondly, the latter half of the paragraph introduces the idea of amending the functions of the Chief Secretary after 1 July 1997. This is apparent from the fact that it refers to the changes being effected with the approval of the legislature of the SAR. This in turn raises the issue of what amendments to the basic law should be permissible after 1997, and by what procedure they should be adopted. The draft agreement and associated statement (attached to Mr Clift's submission of 11 January) contained no provisions for such amendment, the general principle being that once a satisfactory constitution had been adopted for the SAR, it should not be amended for at least 50 years. However, it is apparent from the working paper now under discussion that some amendments may be required by the SAR itself.

5. A third point about this paragraph is that it refers to the necessity for "consultation with the people of Hong Kong" It gives no indication of what in practice this phrase means, or by what procedure the "people" of Hong Kong would be consulted. I think we should be clear in our own minds about the procedure we envisage before making a proposition in such general terms to the Chinese. We should also bear in mind that if we said to the Chinese that the appropriate way of consulting the people of Hong Kong was eg by a referendum, we could hardly deny a similar referendum on the acceptability of any settlement between the UK and the Chinese. That particular solution would in both contexts be fraught with difficulties. I suggest that all the practical implications should be considered before referring in any paper to be handed to the Chinese to a need for consulting the people of Hong Kong. There is also the point that the Chinese, having

/in mind

SECRET