HKC 370/7
Mr Marshall
HKD
HONG KONG:
From:
Miss S Brooks
Legal Counsellor
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R
please
76
Date:
12 November 1992
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LOCALISATION OF LAWS:
CAN LAPSE ITEMS
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1. I refer to your minute of 11 November. You attach what you describe as "the latest list of laws which Hong Kong is willing to let lapse in 1997". As far as I am aware, there have been no previous lists and the draft speaking note attached to Mrs Liu's letter of 11 November states in paragraph 2 that "The British side are now pleased to inform the Chinese side that a first list of "can lapse" items has been produced". Please would you be kind enough to check if there are any previous lists. I would also like to see what the British side stated when handing over the list of enactments which the UK had applied to Hong Kong (JLG VIII November 1987); the British side apparently indicated some of the enactments on the list would not require to be localised and could be allowed to lapse on 1 July 1997.
2. I would like the Hong Kong Government to prepare in respect of all the Acts which appear in the list and which have been applied to Hong Kong by Order in Council, a list of all the relevant Orders in Council including their dates and statutory instrument numbers. It may be necessary to revoke those Orders so that the Acts which they apply will cease to apply to Hong Kong after 1997. But in any case such a list is useful so that we know exactly what legislation is affected. Of the other items listed, some are Orders. The remaining items are Acts which have universal application, such as the Colonial Laws Validity Act 1865; this Act has not been applied by Order in Council to Hong Kong, but the Act does nevertheless apply because it applies to all colonies. It will automatically cease to apply when Hong Kong ceases to be a colony.
3. I have referred above to the possible revocation of Orders in Council. My initial thoughts are that while Acts which have been applied to Hong Kong form part of the law of Hong Kong, such law probably does not survive the change of sovereignty in 1997. The Basic Law, Article 8 does not appear to allow for the survival of such law (incidentally, "subordinate legislation" in that Article probably means legislation made under Ordinances). If needed for the avoidance of doubt, revocation of Orders in Council could perhaps be done under the Hong Kong Act 1985, or it may have to be done individually under the powers conferred by the particular parent Act (a very time-consuming exercise). The Hong Kong Act 1985, Schedule
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