TNAG-1442-FCO40-1926-Constitutional-development-in-Hong-Kong-1986 — Page 5

On practical grounds, there is a case for further developing the systems for making subsidiary legislation, for example by setting up a Standing Committee of the Legislative Council to which all subsidiary legislation would be referred for scrutiny or, in the interests of relieving the burden on the Executive Council, by diverting elsewhere the Governor in Council's powers to make subsidiary legislation.

However any changes in the existing arrangements may be construed by the Chinese authorities as confirmation of their theory that the Hong Kong Government is engaged in a conspiracy to pre-empt the Basic Law by transferring power to the people of Hong Kong in advance of the Basic Law's promulgation. Such changes might be seen to be flying in the face of our assurances that no further constitutional changes are planned until after the 1987 Review. It is therefore recommended that the guidelines at paragraphs 14-18 below, which are based on the existing procedures, should be endorsed and that the former members of the General Services Working Group should be advised accordingly.

14

as

Although it is obviously unwise to make rigid rules to the circumstances in which an Ordinance should contain the power to make subsidiary legislation, it is proposed that; as a general rule, where the reasons set out in paragraph 5 apply, such power should be vested as follows:

(a)

regulations to be made by the Governor in Council except that regulations requiring a greater degree of flexibility or speed than can be achieved in a submission to the Governor in Council may be made by the Governor, Chief Secretary or Financial Secretary, depending upon the importance of the regulation;

(b) rules to be made by Rules Committees, the Chief Justice and bodies who are concerned with matters of procedure e.g. Securities Commission;

(c) by-laws to be made by the Urban Council, Regional Council, Transport Companies or by statutory corporations or bodies;

(d)

orders and

(e)

notices to be made by the Governor or a Secretary depending upon the consequences e.g.

commencement notices

should always be made by the Governor;

the Legislative Council should continue to make subsidiary legislation where public revenue is involved and in respect

in respect of any other matter which is sufficiently important to require debate in public.