TNAG-2012-FCO40-2864-Constitutional-development-in-Hong-Kong-1991-1990 — Page 49

ANNEX

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Colonial Laws Validity Act 1865

Two recent articles published in Ming Pao on the subject of the Colonial Laws Validity Act have asserted that, if HK's LegCo were to be composed of members, one half of whom had been elected, it would "have the power of legislation" and "switch the power of enacting laws from the Governor to LegCo".

2

The Act would not have any such effect. It is

is the opinion of the legal advisers at both the Foreign Office and the Hong Kong Government that the Act would not and could not operate to alter the present constitution of Hong Kong.

3

The relevant provision of the Act is section 5 which applies to "representative legislatures": 1.e. those British colonial legislatures comprising a legislative body with half of their members elected. (Of course, the HK LegCo is not such a body).

4

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own

In 1865 there was some speculation whether such representative legislatures could alter their constitution. Popular legal opinion then was (and remains) that they could. The Act was expressly enacted merely to put it beyond doubt that "representative legislatures" have the power to make laws with

respect to their Own constitution, powers and procedures. The Act does not arm such legislatures with any fresh power.

5.

If, in future, the HK LegCo became a "representative legislature", LegCo would be

be able to alter its composition, powers (which are already as wide as they could be) and procedures. LegCo would not, however, obtain power from the Act to remove the Governor from the legislative process and to vest itself alone with the power to legislate.

6..

In any event, the Act provides that any law to alter the constitution, powers and procedures of a "representative legislature" must be enacted in accordance with the procedures prescribed, in the case of HK, by the

Letters Patent. Accordingly, any attempt by LegCo to alter its constitution could, if necessary, be thwarted by:

(a) the Governor refusing his assent to such

bill; or

(0)

a

by exercise of the right reserved to the Queen (acting on the advice of the Stipish Government) to disallow any law enacted by the legislature;