TNAG-2462-FCO40-3583-Application-of-Colonial-Laws-Validity-Act-in-Hong-Kong-1992 — Page 8

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TO IMMEDIATE HONG KONG

TELNO 783

OF 12100OZ MAY 92

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INFO IMMEDIATE PEKING, UKREP JLG HONG KONG

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PERSONAL FOR GOVERNOR FROM RICKETTS, HKD PEKING, PERSONAL FOR AMBASSADOR

UKREP JLG, PERSONAL FOR GALSWORTHY

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YOUR TELNOS 3931 AND 95: COLONIAL LAWS VALIDITY ACT (CLVA)

1.

I AM CHAGRINED TO FIND, FOLLOWING AN ENQUIRY FROM MICHAEL SZE, THAT WE FAILED TO RESPOND AT THE TIME TO YOUR TURS. REPLY WAS DRAFTED AND APPROVED BY MINISTERS, BUT INEXCUSABLY NEVER SENT. WE HAD INTENDED TO DISCUSS THE SUBJECT WITH YOU DURING YOUR JANUARY VISIT - AND I DID, I THINK, MENTION IT TO YOU THEN. I AM SORRY THAT THE TRAIL THEN WENT DEAD.

2. YOUR TURS RAISED THE QUESTION OF WHAT OUR RESPONSE SHOULD BE IF LEGCO WERE TO INVOKE SECTION 5 OF THE COLONIAL LAWS VALIDITY ACT (1865). YOU POINTED OUT THAT SINCE LAST SEPTEMBER'S ELECTIONS LEGCO HAS BECOME A ''REPRESENTATIVE LEGISLATURE' WITHIN THE MEANING OF THE ACT IE: MORE THAN 50 PERCENT OF ITS MEMBERS ARE ELECTED. THIS MEANS THAT LEGCO IS NOW, IN THEORY, ENTITLED TO PASS A LAW ALTERING ITS OWN CONSTITUTION AND COMPOSITION EG TO MAKE LEGCO A WHOLLY DIRECTLY-ELECTED BODY. YOU SUGGESTED SEVERAL POSSIBLE RESPONSES SHOULD THE UNITED DEMOCRATS DECIDE TO TRY THIS. AS YOU SAY, ALL OF THEM ARE IN VARYING DEGREES UNPALATABLE.

3. WE LOOKED AT THE 5 OPTIONS YOU PRESENTED AND AGREED WITH YOUR DISMISSAL OF OPTIONS A,C AND E AS UNACCEPTABLE. BUT WE 'WERE LESS SURE THAT OPTION B WAS THE ONE TO GO FOR. OUR

PREFERENCE WOULD BE TO RELY ON THE EXISTING (EXTENSIVE) POWERS ALREADY AVAILABLE UNDER THE LETTERS PATENT AND IT SEEMED TO US, THEREFORE, THAT A VARIANT OF OPTION D WOULD BE THE LEAST DIFFICULT TO MANAGE. WE AGREE THAT FOR THE GOVERNOR TO BE OBLIGED TO REFUSE HIS ASSENT TO A BILL PASSED BY LEGCO, AS HE IS ABLE TO DO UNDER LP ARTICLE X, WOULD BE HIGHLY UNDESIRABLE, PARTICULARLY IF IT WERE TO OCCUR EARLY IN THE TERM OF A NEW GOVERNOR. IT WOULD ALSO SET A VERY BAD PRECEDENT FOR THE FUTURE

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CHIEF EXECUTIVE (WHO ALSO HAS THIS POWER). BUT THE IMPACT ON THE GOVERNOR'S POSITION MIGHT BE REDUCED IF HE USED HIS POWER UNDER THAT SAME ARTICLE (LP X) TO RESERVE THE BILL FOR DECISION IN LONDON. THAT WOULD PUT THE RESPONSIBILITY WHERE IT

ULTIMATELY LIES, WITH THE SOVEREIGN POWER AND, WHILE UNCOMFORTABLE FOR HMG, WOULD PROBABLY BE LESS DAMAGING OVERALL. A BILL SO RESERVED LAPSES AFTER 2 YEARS UNLESS HMG INDICATES AGREEMENT BEFORE THAT (LP XI).

4 WE WERE LESS ATTRACTED TO OPTION B, IE AMENDING THE LP TO OBLIGE THE GOVERNOR TO RESERVE FOR DECISION IN LONDON ANY BILL SEEKING TO ALTER LEGCO'S CONSTITUTION AND PROCEDURES. YOU SUGGESTED IT MIGHT BE POSSIBLE (AND MORE PALATABLE) TO PREPARE SUCH AN AMENDMENT IN ADVANCE AND ONLY PUT IT THROUGH THE PRIVY COUNCIL SHOULD THE PROBLEM ACTUALLY ARISE. WE THINK THIS COULD, PROBABLY, BE DONE WITHIN THE TIMESCALE OF 4-6 WEEKS WHICH YOU THINK WOULD MOST LIKELY BE AVAILABLE. BUT IT WOULD BE QUITE A SCRAMBLE AND TIMING WOULD BE TIGHT.

5. WE ALSO LOOKED INTO THE POSSIBILITY OF ACTUALLY MAKING THE AMENDMENT BUT NOT PUBLISHING IT UNTIL OR UNLESS REQUIRED. BUT THIS DOES NOT SEEM TO BE A RUNNER. THE RULES ARE SUCH THAT AN AMENDMENT WOULD BECOME PUBLIC WITHIN A YEAR AT LATEST. (AMENDMENTS HAVE TO BE PASSED TO THE PUBLIC RECORD OFFICE AT THE END OF THE REGNAL YEAR IN WHICH THEY ARE SIGNED IE ON

6 FEBRUARY). IT COULD, OF COURSE, LEAK BEFORE THEN.

6.

IT SEEMED TO US THAT IN PRACTICE THERE WAS NOT A GREAT DEAL OF DIFFERENCE BETWEEN OPTIONS B AND D. IN BOTH CASES WE WOULD BE USING RESERVE POWERS TO BLOCK AN ATTEMPT BY LEGCO TO AMEND ITS CONSTITUTION USING THE CLVA. THE DIFFERENCE IS THAT IN OPTION D WE WOULD BE RELYING ON EXISTING GENERAL POWERS. UNDER OPTION B WE WOULD IN EFFECT BE TYING THE GOVERNOR'S HANDS SO THAT HE WAS UNDERLINE NEXT WORD OBLIGED TO RESERVE FOR DECISION IN LONDON ANY SUCH BILL.

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IN PRINCIPLE WE WERE NOT IN FAVOUR OF INCREASING THE ALREADY CONSIDERABLE RESERVE POWERS IN THE LP UNLESS ABSOLUTELY

NECESSARY. AND, SINCE THERE IS NO STRONG EVIDENCE THAT THE UDHK IS PLANNING TO MOUNT SUCH A CHALLENGE, WE SAW NO ADVANTAGE IN POSSIBLY PRECIPITATING THE ISSUE BY AMENDING THE LP. SO, UNLESS THE OPTION OF RESERVING A BILL FOR DECISION BY HMG CONTAINS PITFALLS WHICH HAVE NOT YET BEEN IDENTIFIED, OUR PREFERENCE, IN AN ADMITTEDLY UNATTRACTIVE FIELD, WOULD BE FOR OPTION D.

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