TNAG-1845-FCO40-2620-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1989 — Page 82

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22 March 1989]

[Mr Wells Contd]

MINUTES OF EVIDENCE TAKEN BEFORE

RT HON SIR GEOFFREY HOWE, QC, MR ROBIN McLaren, CMG, and MR ALAN PAUL

Executive will have power over the introduction of Bills but will have fewer powers over passage of Bills through the legislature. The Chief Executive can only delay a Bill for three months and dissolve the legislature if that does not stop it; whereas the Governor under the present constitution has no such legal restrictions on his power of refusing consent or dissolution. So you will see, if you look at Article 48, that it sets out the powers of the Chief Executive, and if you look at Article 49, if the Chief Executive considers that a Bill passed by the legislature is not compatible with the overall interests of the SAR, he may return it to the legis- lature within three months for reconsideration. If the legislature pass the Bill again by no less than a two-thirds majority, the Chief Executive must sign and commendate it, then (1)(i) “or act in accord- ance with Article 50”. Article 50 provides for a dissolution of the Legislative Council and then it comes back again. Its power is revived. So there is a much more complex balance of powers between the Chief Executive and the Legislative Council than there is in the present situation.

36. Yes, I understand that the Governor has only once in 1946 refused to assent to a Bill passed by the Legislative Council and that the power of dissolution has not been exercised since 1914. So can we say that, in fact, that Article 50 really reflects what is the current practice rather than what are the formal powers of the Governor and that it is the intention to translate into the Basic Law the reality of the Governor's powers, not his theoreti- cal powers?

(Sir Geoffrey Howe) Yes, I think what it is intended to do formally is to translate into the Basic Law what is in the Joint Declaration and what is in the Joint Declaration is intended to be descriptive of the reality including what we would call the conventions of the constitution as well as the strict legality. Because what we have tried to do in the Joint Declaration is to secure continuity of that which works and which has worked well so far.

37. This brings us, of course, directly to the question of the appointment of the Chief Executive. As you know, the Governors have been subject to appointment by Her Majesty and the Government in Britain and, of course, they have been subject to removal; being civil servants, of course, for the most part they spend a limited time in power. In the future that is not going to be the case and, therefore, it is not going to be possible to translate the current position into the Basic Law in reality. Now, how do you see that being overcome?

(Sir Geoffrey Howe) Again one starts from the Joint Declaration (which I keep on mislaying) but you remember the provisions of the Joint Declar- ation which provide (Annex 1 of the Joint Declar- ation, Part 1) that the Chief Executive shall be selected by election or through consultations held locally and be appointed by the Central People's Government. The inclusion of the electoral option in that part of the Joint Declaration is, if I remem- ber correctly, one of the later achievements of the

[Continued

negotiating process. It provides for election or selection by election or through consultations, and that is now translated into Annex 1 of the Basic Law as it now appears before us and this also is part of the Basic Law which is still subject to further consideration. You will see it provides a number of alternative methods for dealing with the point you raise.

38. And, of course, his removal as well. One of the things that I think strikes the Committee is the issue of his removal from office. In our consti- tutional practice, once the executive loses the con- fidence of the legislature, then by practice the exec- utive resigns and may submit itself to an election, or alternatively the legislature elects a different executive. That does not seem to be reflected in the future that is being designed in Hong Kong.

(Sir Geoffrey Howe) I think you will find that the method for selection of the first Chief Executive is different and less sophisticated than the method for the emergence (if that is the right word) of the Chief Executive on the second or third occasion, and certainly opinion has been expressed in Hong Kong to the effect that there is a case for making even the first Executive selectable along the rather more open lines of the second and third. On the method of the second and third itself, again there are different opinions in Hong Kong. Some people appear to be satisfied with what is there and others are anxious to bring forward the operation of universal suffrage in relation to the second and third Chief Executive. This is clearly seen as one of the areas which will need further revision in the context of the current consultations. I do not know that I can give you the full range of checks and balances in relation to the power of the Chief Executive. We have looked at the balance between the legislature and the Chief Executive in relation to legislation. The Basic Law also provides for the impeachment of the Chief Executive for a serious breach of law, dereliction of duty. I think that is the range of balances at present in place.

39. Is it the intention to abolish those powers available either to the Governor or to the authori- ties which are currently exercised and which could be used in an oppressive fashion?

(Sir Geoffrey Howe) A number of those matters are in the course of being changed now. For example, recently-I forget what stage they have reached but the censorship provisions in relation to films, I think I am right in saying, and also the statute of inhibition on freedom of publication have been withdrawn as a result of intervention by LegCo, and the Law Reform Commission, which is already in place in Hong Kong, is itself now looking at cases relating to arrest, detention and bail and the education ordinance to ensure that the liberalism desired in present circumstances is reflected there. I cannot give you an exhaustive list but these reviews are not necessarily aimed at 1997. They are taking place all the time. The ones that are 1997 directed are the localisation of legislation which exists in the common law but not in the statute law.