HKC 031/15
1-... 1993
FROM:
Jill Barrett
Assistant Legal Adviser K174 270 3381
DATE:
29 October 1993
cc.
Mr Whomersley o/r
Ms Bouch
HKD
HONG KONG: SUBSCRIPTION TELEVISION COPYRIGHT PROTECTION
1. You asked for further advice on your reply to Ms Au's letter of 20 September, in the light of Mrs Sullivan's letter of 13 October and the attached correspondence supplied by the DTI legal adviser, Mr Mungat, and the back papers concerning the drafting of the Copyright (Hong Kong) (Amendment) Order 1990. I have also now had the opportunity to discuss this with briefly with Mr Whomersley (just back from his duty overseas but about to go on leave for three weeks).
2.
Mr Whomersley said that he can see the force of the
arguments which Mr Mungat is now making to the effect that the 1990 Order was ultra vires the powers in para 36 (2) of Schedule 1 to the Copyright, Designs and Patents act 1988, and is therefore invalid. He nevertheless remains of the view that, on balance, a court would be more likely to uphold the validity of the Order. He agreed with the approach which I suggested before (see my minute of 8 October, paras 3 and 6) ie that we tell HKG that we consider that there is room for more than one legal view as to the validity of the Order. On the one hand, Mr Whomersley considers the Order to be valid, as did Mr Mungat at the time it was drafted, and the vires were not queried by the Joint Committee on Statutory Instruments. On the other, Mr Mungat is now firmly of the view that the Order is invalid, and Miss Brooks and I find his arguments persuasive, although can see the force of the other view.
3.
I
HKG have asked to see the legal advice on which your earlier letter was based, and as I indicated before, I am content for you to send my minutes of 30 July and 6 August. think we can assume clearance for this from Mr Mungat and Mrs Sullivan in the light of para 2 of the latter's letter of 13 October. It is helpful that Mr Mungat has copied us his minute of 4 August to Mrs Sullivan to send to HKG, and also helpful that in it he makes clear that he now believes that in 1990 he made erroneous assumptions about the extent of the powers in the 1988 Act.
4. In para 6 of my minute of 6 August I summarised Mr Mungat's explanation of the policy behind the restrictions on the powers in para 36(2), namely to freeze the scope of the obsolete legislation currently extended to DTS, so that if they want to add new subject-matter we cannot keep building it onto the old provisions by Order. Their options are
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