TNAG-2014-FCO40-2865B-Constitutional-development-in-Hong-Kong-1991-1990 — Page 95

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4. I do not think it is necessary to consider here how practice has modified the legal provisions of the Letters Patent up to now. 1991 will make a significant legal change to the composition of LegCo, providing for the first time an elected majority. This change coincides with a different, and probably developing, political climate, the possibility of the emergence of a different atmosphere within LegCo and a greater number of new members who are less willing to follow the lead of the Administration than their predecessors. It is probable that the legislature between 1991 and 1997 (or even 1995) will be more difficult to manage than the pre-1991 LegCo or the post-1997 Legislature. The Governor may not have the kind of practical support the Administration has enjoyed in the past and it cannot be excluded that LegCo may refuse to pass a bill which the Governor considers important or, of possibly more immediate significance, that it may resist or delay an Appropriation Bill in order to force the Governor to adopt a course of action to which he, and HMG, may be opposed, or even just to show its teeth. The power of the Governor to dissolve the legislature may rid him of a present cause of difficulty; it will not give him the money or bill he needs to carry on the administration of Hong Kong.

5. HMG's practice has been not to leave a Governor with executive powers exposed, and potentially powerless and perhaps penniless, to the possibility of being unable to exercise his executive powers because of a lack of cooperation or of hostility by a legislature which he cannot control. Whether the executive powers are as comprehensive as those enjoyed by the Governor of Hong Kong or are limited in the case of a Governor who is only partly responsible for executive matters (the remainder being the responsibility of elected Ministers who sit in a legislature), our practice has been to confer upon the Governor a reserved power of legislation to enable him to exercise, notwithstanding opposition in the legislature, those executive powers which are vested in him. There are two different devices, the adoption of the second being contingent on limitations on the first. The first device is to confer on the Governor the power to make laws to enable him to exercise his executive functions if the Legislative Council refuses to pass bills.

Such a power should be co-extensive with the Governor's executive power; if the latter is limited to certain topics, so will the legislative power be limited. This legislative power could extend to authorising appropriation for those executive services for which he is responsible. If the Governor's reserved legislative power is extensive, that may be all that is necessary. If, however, it is limited, it may be necessary to adopt the second device, which is to ensure that the Governor's own emoluments, and sometimes those of his personal staff, are charged on the revenues of the territory; this will enable the necessary money to be dispensed without an appropriation law.

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