TNAG-1351-FCO40-1792-Constitutional-development-in-Hong-Kong-1985 — Page 37

CONFIDENTIAL

3. A matter of more significance has been disclosed by my

consideration of Sir P Haddon-Cave's letter and the present draft.

Although the Hong Kong Letters Patent provide for a reserved

power of legislation by the Crown, there is no reserved power of

legislation by the Governor. Roberts-Wray describes this

power as follows:

"In a legislature with an official majority, the

United Kingdom Government was in a position to

exercise positive control over legislation by

ensuring that official members voted in accordance

with their instructions. Where the legislature has

a majority of unofficial members, if positive control

is required the practice has been to vest in the

Governor a reserved power working through the

ordinary legislative machinery.

TE

This is by no means an archaic power or power inserted in

primitive constitutions but a provision designed to enable the executive to legislate in exceptional and necessary cases. I attach 3 photostats (Gibraltar 1950, Singapore 1955 and

Turks and Caicos 1976) which illustrate the kind of provision

that is made. Mr Aust tells me that a reserved legislative

power is included in the latest draft of the Falkland Islands

constitution.

Fue. 1984.

4.

Such a provision should have been made for Hong Kong and

included in the Letters Patent when the unofficial members first

outnumbered the official members and the case for including it

is the stronger now that elected members are to be introduced

into the legislature. It may be considered a necessary power in order to enable the United Kingdom to exercise its

responsibility of administration as provided by paragraph 4 of

the Joint Declaration if there are circumstances in which it

is necessary, eg either for financial reasons or for security reasons, to legislate

notwithstanding the reluctance

of appointed or elected members. It is true that the Crown's

2 CONFIDENTIAL

/reserved