CONFIDENTIAL
However, there is no compelling reason of law, logic or convenience for perpetuating the anomalies of a divided jurisdiction over charitable gifts. In order to provide a practical and just procedure which will continue to be effective for the future, we propose to introduce local legislation, by inserting a provision in the Probate and Administration Ordinance, to transfer this prerogative power in respect of administering bequests for unnamed charitable purposes from the Crown to the courts, so that in future its exercise would fall entirely within the judicial power to be administered by the court in more or less the same way as the court directs a scheme for defining the scope and objects of a charitable trust, and for regulating its execution.
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You may like to note that this suggestion was first made by Mr. Fifoot the Legal Adviser of your office back in 1985.
We are aware that Royal Instruction XXVT(8) requires that the Governor shall not assent to 'any Bill of an extraordinary nature and importance, whereby Our (Royal) may be prejudiced'. Our legal advisers are of the view that the proposal is not affected by this provision, but you may wish to confirm this with your legal adviser.
prerogative
on
We consider this proposal falls outside the scope of the guidelines agreed with the Chinese for consultation the adaptation and the localisation of laws. It is true that our proposal seeks to enact as local legislation an aspect of the prerogative relating to charitable bequests. However we
are not committed to consultation on localisation of laws other than enactments. Since this proposal is not aimed at making the enactment in question consistent with the Basic Law, it is not an adaptation exercise that requires consultation with the Chinese. Moreover, the proposal is only of a very minor nature and unlikely to attract the Chinese side's attention. But we shall be happy to give the Chinese side information if necessary. UKREP JLGHK concurs with this approach.
The objective of the proposed amendment is to rationalize and simplify the procedure for executing testamentary gifts for charitable purposes.
Since this involves the question of royal prerogative, we would like to consult the FCO first before proceeding and should be grateful for your views. In case this does not come under your responsibility I would be grateful if you would pass it to the officer who is responsible for this subject.
Yours,
Rickend Yuen
(Richard YUEN )
for Director of Administration
CONFIDENTIAL
3
Mr Riordan
HKD
WH 305
BILL OF RIGHTS
1. Thank
on the
you
a
fa
copying
two recent
Reference
(12
I thie 241/3
BOR
me
06 DLI
Mr Bradley's
cases
summaries and judgments. They
and
Mr-
Leing's note
is
s letter
and the enclosed
are indeed
of interest
most helpful. As we
discussed on the telephone, it would be useful to have regular report from HKG on the progress of BOR litigation, public reaction to it, and achon taker by
HKG
in
response.
2. On the functional constituencies issue, I have read
I Mr Deane, There
the two papers by,
Mr Deane. There is not a
great difference between his views and mine; I think we
that (i) there is
both
agree
(ii) that there are
itka
a riste of legal challenge; good arguments that the can use
election; (iii) the risk
to defend this method
g
adverse finding by the courts
of
an
is low, but nevertheless
exists, I would not however favour
amendment
to the Letters Patent to put the matter beyond doubt,
as this would be inconsistent with the recent
amendment
to entrench the provisions of the ICCPR,
I doubt there is eliminate the risk.
any
action
we
can take to
CODE 18-77
3.
CODE 18-77
Reference
On the question of the risk of
to the
minimom
a BOR challage
ou
voting age (para Go I think that the risk of on this point is
a court
Tel No. 1263), adrese finding by Somewhat greater. The best
it is fo
ал
The best way of avoiding
HKG to reduce the
the age of majority,
ie, 18
minimum age
In view of Mka's
to
stated intention of reviewing the voting gee before the 1995 elections, I suggest there is no need for us
to
pursue note of time in the future bite the bullet.
this point now,
but that we make a
it, and at some
we encourage.
suitable
them to
Will Banett
Asst. Legal Adviser
K174
3381
26/9/91