TNAG-1357-FCO40-1798-Constitutional-development-in-Hong-Kong-1985 — Page 55

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DEPUTY LEGAL ADVISER

DATE: 31 December 1985

: Mr Layden, HKD

DEVELOPMENT OF REPRESENTATIVE GOVERNMENT IN HONG KONG AND 1987 REVIEW: HONG KONG TELNOS 2909 2910, AND 2915

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I have the following comments on this paper.

1.

PART I

Para 6 of this paper is of course correct, but in getting there it would be as well to be accurate with regard to the existing constitutional and legal position. There are two separate areas of criticism.

2.

I don't

First, there are a number of inaccuracies of detail. think it is true to say (line 1 of para 1) that "The Governor, as the representative of the Queen, has ultimate direction of the administration ...". The Governor is the representative of the Queen and has ultimate direction of the administration of Hong Kong. However, the latter is not inherent in the former; the two hats can be separated. Indeed, this is the argument canvassed in para 4 et seq of Part III. Again, para 2 is less than comprehensive in enumerating the legal powers which exist. Not only may Parliament legislate, but the Crown has both a constitutive power and an ordinary legislative power. Further, the Governor is subject to directions by the Crown under Article II of the Letters Patent, directions which may extend to any matter of administration, not only to constitutional matters. In particular, (para 3) the Governor is subject to directions not only in relation to appointed members of the Legislative Council but also in respect of appointed members of the Executive Council.

3.

The second area of criticism goes beyond the details of the legal position. The first line of para 2 runs "Under this constitution Hong Kong enjoys conditional autonomy". That is wrong. Despite the constitution Hong Kong enjoys in practice considerable freedom to regulate its own affairs. That may be described as a wide measure of "autonomy" but I would be chary of using that word in a sentence which introduces a description of the present constitutional stage, if only because it may mislead the reader. It would be best to omit the sentence and lead up to the difference between appearance (on the documents) and reality, and I would take no exception to the words "a much greater degree of autonomy" in the 10th line of that paragraph. However I think the reference to "convention" in the 9th line is objectionable for the reasons which I explored in the memorandum I wrote to Law Officers when we consulted them on the question of autonomy and the GATT, namely that it was undesirable now to provide ammunition which would support future arguments (in the next 12 years) which might inhibit HMG from exercising powers which had been disused for many years, particularly so since any such convention would have the effect of modifying the relationship of the Governor with the Crown. I would have thought this point could have been met by substituting "in practice" for "by convention".

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