TNAG-2462-FCO40-3583-Application-of-Colonial-Laws-Validity-Act-in-Hong-Kong-1992 — Page 26

3. The obvious way of avoiding any potential conflict between LEGCO's powers under Section 5 and the prerogative power of reserving Bills is to disapply the relevant parts of Section 5. I have considered whether there is an alternative to doing this by primary legislation.

In my view there is no alternative. An Order in Council made under paragraph 3(1) of the Schedule to the Hong Kong Act 1985 amending Section 5 is at first sight a possibility. But such an Order is only intra vires if it makes 'such provision as appears to be necessary or expedient in consequence of or in connection with the provision of Section 1(1) of this Act' (paragraph 3(1) of the Schedule). Section 1(1) provides for the ending of the Crown's sovereignty and jurisdiction over Hong Kong from 1 July 1997. The disapplication of the relevant part of Section 5 in order to prevent a constitutional crisis with LEGCO seems insufficiently connected with the end of British

sovereignty; an Order in Council disapplying the relevant part of Section 5 would be ultra vires.

4. If, for policy reasons, primary legislation disapplying Section 5 is ruled out and Section 5 must coexist with the proposed amendment to the Letters Patent reserving a Bill amending LEGCO's constitution, LEGCO could argue that Parliament's intention to grant it the power to make laws respecting its constitution is being thwarted by royal prerogative. In order to meet this argument, it would be necessary to rely on the provision to Section 5 which reads 'provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial law for the time being in force in the said colony'. (my underlining). It would be necessary to interpret this as meaning that LEGCO's Bill (for example, to amend Article VI of the Letters Patent) would be subject inter alia to the power to reserve Bills. If LEGCO attacks this power, it would be necessary to argue that the power to reserve legislation is a major prerogative power and that although local legislation may amend prerogative Orders in Council and Letters Patent, it can only do so where the legislation is an ordinary law or affects a minor prerogative power.

5. Option D (refusal of the Governor's assent) and Option E (disallowance by The Queen) at paragraph 7 of Hong Kong telno 3931 are subject to the same potential conflict with Section 5 as Option B (reserving Bills altering LEGCO's constitution). If either Options D or E were ultimately chosen, LEGCO's arguments about the blocking of their Bill would equally have to be met by relying on the argument about the proviso to Section D and if necessary, in the

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