E.R.
Mr Page
Hong Kong Unit
B2 Division
CC:
Mr Osborne
Mr John Morris FCO
BRITISH NATIONALITY (HONG KONG) ACT 1990: HONG KONG BAR ASSOCIATION
John Morris faxed to me a copy of the letter dated 27 February from the Hong Kong Bar Association, which we have also discussed briefly over the telephone.
2.
If we wish to meet the point made by Mr Rogers, it cannot be done in the way suggested by him. Being a member of a British Inn of Court is not "service with a British undertaking" within the terms of Article 16 for two reasons. A barrister is self-employed and is not in "service" with anyone. The definition of British undertaking in Article 7 is limited to "a company or firm" which the Governor is satisfied has a close connection with the UK. In my view, an Inn of Court does not come within this definition. I must say I am a little surprised at the inclusion of some of the bodies which you mentioned as having already been recognised by the Governor as within this definition for the purposes of Article 16. I have not seen the full list of recognised organisations, but there may be some cause for concern about
vires.
3. An alternative method of awarding additional points to barristers with UK connections would be by the use of the Governor's discretion under Article 14 (3) (a). It has to be said that this was not the purpose for which the power was intended. It is arguable whether membership of an Inn of Court in the UK is an "important" qualification to a Hong Kong barrister. It may, for example, be equally or more important to have rights of audience in US or Australian courts. Solicitors may also be admitted in the UK, but we could not give them additional points under this Article without defeating the object of the exercise. Sheila Brooks at the FCO has queried whether "professional or vocational qualifications" may be limited to those referred to in Article 13 and set out in Annex 4. It was certainly our original intention to use the Article 14 (3) (a) power to add additional points for qualifications set out in the Annex. Nevertheless, I do not think the power is limited to those qualifications. Sheila Brooks also queried whether membership of an Inn was in fact a professional or vocational qualification. I think on balance that it is in much the same way as is membership or fellowship of other professional bodies. If points were to be allocated under this Article, a similar scheme to that set out in Article 16 (3) could be used to calculate the number of points allocated according to the length of membership.