TNAG-1284-FCO40-1636-Constitutional-development-in-Hong-Kong-1984 — Page 312

Mr Hum, HKD

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Ki

01113

STRY

MAR 1984

INTAY

True Take.

91

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Attch

FUTURE OF HONG KONG

1. I have considered the draft paragraphs which you left with me this afternoon, drafted by the Attorney General for Hong Kong, about revocation of the constitutional instruments.

2.

My main criticism of the draft arises from the way in which colonial regulations are classed as constitutional instruments and are dealt with in the same way as the Letters Patent and the Royal Instructions. I suggest that the first sentence of paragraph 2 (as originally typed) could be replaced by the following two sentences

"Revocation of the constitutional instruments relating to Hong Kong, namely the Letters Patent, the Royal Instructions and any relevant Orders in Council must be accompanied by the establishment of the new constitutional arrangements. The latter will also need to deal with those matters which are at present covered by Colonial Regulations."

(This takes account of your suggested amendments.)

I would then suggest that a new paragraph be added at the end on the following lines -

3.

4.

C

"[Defensive] Colonial Regulations are not constitutional instruments having legislative force. They are administrative instructions given by the Crown to the Governors of all colonial territories for their general guidance, which are to be applied only in so far as they are consistent with the constitution or any other law of the territory concerned. Once a territory ceases to be a British dependency, and therefore ceases to have a British governor

colonial regulations automatically cease to have any application to that territory. For administrative convenience, however, any parts of colonial regulations which related only to Hong Kong would be withdrawn when the British constitutional instruments for Hong Kong were revoked. Consideration should be given during the drafting of the Basic Law for the Hong Kong SAR to the question of what should replace them after 1997."

D

9

I have two further small points

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(i) In the middle of the first paragraph I would add

the word "general" before "conduct of external affairs will remain the responsibility of the CPG...".

Further on in the same paragraph I would refer to authority under which the Hong Kong SAR may "conclude on its own initiative the agreements with foreign countries" etc. The point here is that the Hong Kong SAR should be able not only to sign agreements but also to bring them into force, eg

(ii)

A

CODE 18-77

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