TNAG-1439-FCO40-1923-Constitutional-development-in-Hong-Kong-1986 — Page 124

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Putoly

HKKONI RECEWED N HAGFYR •

26 MAR 1986

DUSK Officef

INDEX

FROM: PAUL FIFOOT

DEPUTY LEGAL ADVISER

DATE : 25 MARCH 1986

cc: Dr Wilson

stion. Takun

Mr Hum, HKD

Mr Leeks, HKD

двода

Mr Wood, Legal Advisers

HONG KONG TELEGRAMS 848-852 : REPRESENTATIVE GOVERNMENT

I have now had the opportunity to look at these telegrams.

Telno 848

I have no comments.

Telno 849

The main problem with this paper is that it confuses the Executive Council and the Executive.

"The Executive is the Crown in its "administrative" aspect, or the Government. It consists of the Government departments and their officials under the ministers of the Crown. The principal executive body is the Cabinet, the head of which is the Prime Minister". (Jowitt's Dictionary of English Law, second edition).

"Executive. The branch of the government of a state concerned. with securing the carrying out of policy and applying principles and rules of law to cases ... The Executive branch in the UK accordingly comprises the Crown, the ministers in charge of the various departments of state, and the civil servants and other permanent officials

(The Oxford Companion to Law).

TI

The Executive Council is, at best, only part of the Executive. The Executive also comprises the Policy Secretaries and the rest of the civil servants. If the paper is to deal with "convergance" in an analytical way - which it does for the most part - it needs to take this into account and to consider the concept of the Executive both in relation to the Executive Council (with its advisory, subordinate legislative and policy role) and the Administration. It follows that I would expect there to be references to the Administration in paras 12 and 13 and to clear up the ambiguity of the use of the word "Executive" in para 18(e). It would also be desirable to deal with both aspects of the Executive in paras 19 and 20.

In this connection it should be noted that references in the Joint Declaration and Section 1 of Annex 1 to the Executive (viz. the third sentence of para 3(4) and the third and fifth sentences of the third para of Section 1 of Annex 1) are more closely related to the Administration than they are to the Executive Council.

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