TNAG-1289-FCO40-1641-Terminology-for-the-description-of-Hong-Kong-by-internationa-1984 — Page 49

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the provision for vacating seats by official members. Both official members (other than ex officio members) and unofficial members are appointed and these provisions can, therefore, be conveniently taken geth'seems logical to me also to extend the provision for reappointment to official members as well as unofficial members so long as they are "appropriately qualified".

Clause 5. There is no reason why the provisions set out in the Hong Kong draft relating to elected members should not be

part of the electionsordinance. There is, however, a small problem with regard to what becomes Clause XVII (1)); should this paragraph apply to official members? It cannot do so in its entirety because, presumably, one of the disqualifying factors would be holding office under the Crown in the Colony and if we were to extend this paragraph to all appointed members we would have to make that exception at least.

However the most convenient approach might be to confine this paragraph to unofficial members leaving the Governor to ensure that official members no longer sit if they are guilty of the kind of conduct which would disqualify an unofficial member. The same considerations would apply to paragraph 2 in that the Governor can ensure the attendance of his officials.

Clause 7. I think this is right; there will now be objective disqualifying criteria and if a question arises in relation to those criteria it is appropriate that it should be decided in the same way as it would be decided in respect of an elected member. Of course, if we were to provide for the same kind of formal disqualification provision with regard to official members a question would arise whether they should also fall under this new clause. Perhaps that is the most practical reason for excluding them from the new Clause XVII.

Clause 9. I do not think there is a need for all the detail which Hong Kong propose for XXIA

and XXIB.

Clause 10. I think we should put election laws in the reserved clause. Hong Kong appears to accept this in their draft of Clause 2 of the additional instructions.

3. Although the matter does not arise on the present proposals, I think you and Hong Kong should start thinking about whether the provisions of the Letters Patent relating to the judiciary should not be moved to a local law and whether a number of the provisions of the royal instructions which relate to the way in which the Legislative Council conducts itself should not be contained exclusively within the standing orders of the Legislative Council.

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Paul Fifoot

Deputy Legal Adviser