CONFIDENTIAL
9.
Perhaps the most fundamental point on which we need to take policy decisions concerns the references in sub-sub- paragraphs (a), (b) and (c) to "any Act". My own view is that the Bill should make it absolutely clear whether "any Act" does or does not include "this Act". Thus, for example, in a corresponding provision in Schedule 1 to the Belize Act 1981 there appear the words "including this Act". If similar words were to be inserted in this paragraph of the Bill it would be clear (and the result may possibly be the same even without those words) that an Order in Council could be made repealing or amending the Hong Kong Act, eg the provisions of clause 1(1). This might well please Hong Kong, and it would not prevent our ratification of the agreement if the Bill should confer such a power, even if as a result of parliamentary pressure or for any other reason it were decided to make Orders in Council for this purpose subject to the affirmative resolution procedure. On the other hand do we wish the Chinese to see us reserving the power to amend Clause 1(1)?
10. The phrase "any instrument made under any Act" would not include an instrument made under the Royal prerogative, eg prerogative Orders in Council, the Letters Patent and the Royal Instructions. However the Crown does not need enabling powers to amend or repeal any instrument made under the Royal prerogative. Nor can I imagine any need to allow Hong Kong to amend or repeal such an instrument.
7.
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F Burrows
CONFIDENTIAL