TNAG-2014-FCO40-2865B-Constitutional-development-in-Hong-Kong-1991-1990 — Page 93

CONFIDENTIAL

9.

(a)

(b)

(c)

10.

Decisions are, therefore, necessary now on:-

the making of provision in the Letters Patent for a reserved power of the Governor to make laws relating to provision of monies for the public service if the legislature refuses or delays to make such laws (the power need not be couched in terms of money, but it would have that effect);

the empowering of the Governor to make other laws within the scope of his executive functions in the same circumstances; (once (a) is in principle accepted, (b) is less to swallow; the machinery in the Basic Law for resolving non-revenue disputes between Executive and Legislature is not apt for a Governor);

in order to avoid opposition to the Governor leading to constitutional disputes, charging the revenues of Hong Kong (ie so that an Appropriation Bill is unnecessary) with the emoluments and expenses of the Governor and his staff.

There are a number of details which will need to be considered such as a precondition of consultation with the Executive Council and, failing agreement with it, a requirement to obtain the authority of the Secretary of State before any bill is made law by the Governor without the consent of the legislature. There are also a number of ways of dealing with a charging provision. It would be possible, for example, to require the legislature to fix emoluments themselves but to charge the sum fixed by the Letters Patent. Alternatively, the Secretary of State could fix the emoluments. I do not think it is necessary to burden this minute with the details. The important thing at this stage is that we face up to the danger of leaving the Governor exposed to non-cooperation or opposition from the Legislative Council without his being able to do anything about it, a situation which may provoke that very challenge which we should seek to avoid. If it is agreed in principle that the question of reserved powers cannot be avoided any further, we can sort out the details of the relevant conditions and circumstances in which the power might be exercised. The same goes for charging the emoluments etc of the Governor on the revenues of the territory.

27 June 1990

2 PFABK

CONFIDENTIAL

of

Paul Fifoot