TNAG-2462-FCO40-3583-Application-of-Colonial-Laws-Validity-Act-in-Hong-Kong-1992 — Page 25

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Mr Box fi

12813/1

Ms Samdery - pliseer

Mr Ricketts

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for submission, pra

Hong Kong Department

COLONIZ

FROM:

DATE:

MyB 025

AN

Miss S Brooks Legal Counsellor

7 January 1992

CC:

Mr Cox, HKD

Mr Stone, HKD

Ms Saunders, HKD

Mr Wye, RAD

COLONIAL LAWS VALIDITY ACT 1865: HONG KONG LEGISLATIVE COUNCIL (LEGCO)

3

سام

1. Thank you for your minute of 2'January referring to Hong Kong telno 3931 of 27 December. I would very much like to see FCO telno 306 of 1987 and the advice given by Hong Kong Department's Legal Adviser in 1987 to which paragraph 1 of Hong Kong telno 3931 refers. My initial views on this matter without the benefit of those papers is that amending the relevant Article of Letters Patent (presumably Article X) to require the Governor to reserve a Bill passed by LEGCO to alter its own constitution is likely to be the most discreet solution (Option B at paragraph 7 of the Hong Kong telegram). It is not as confrontational as refusing assent

or disallowance.

The

2. However, Option B raises two problems which need to be resolved and which are not discussed in the Hong Kong telegram. Firstly, what is the effect of Article XI of the Letters Patent? This Article is about reserved Bills. Does its proviso mean that the Crown can reserve Bills for an indefinite period but, if a Bill is to receive assent, this should be given within two years from the day on which the Bill was presented to the Governor for his assent? I believe this is the meaning of Article XI but it is not altogether clear. Secondly, assuming the relevant part of Section 5 of the Colonial Laws Validity Act 1865 (copy of the Act attached) is not disapplied, what is the position if, on the one hand, LEGCO continues to have full power to make laws respecting its constitution, powers and procedure as provided for by Section 5 but, on the other hand, the Crown may reserve a Bill amending LEGCO's constitution indefinitely.

AELAAW