CODE 18-77
Reference...
Schedule of SI 1989/1293) do, of course, continue to have effect in relation to the dependencies on, I assume, general principles. I am most reluctant, however, to advise that the general principles entail the exercise of a power to amend the 1979 Order to refer now to China and to provide for the amending Order to list Hong Kong and the other countries to which it 'extends'. The FCO will need to consider this and it may be that paragraph 4(5) of Schedule 1 to the 1988 Act contains the power to do precisely that.
5 'The one other possibility which the FCO may wish to consider is the effect of Orders made under the Hong Kong Act 1985 (cap.15). Under paragraph 3 of the Schedule to that Act, Her Majesty may before 1 July 1997 make such Orders as appear necessary [for the transfer of sovereignty to China] for amending or repealing any enactment so far as it is part of the law of Hong Kong. I have two Orders before me. The first, the Hong Kong (Legislative Powers) Order 1986 (SI 1298) relates to repeal or amendment of laws relating to civil aviation, merchant shipping and admiralty jurisdiction.
6 The second Order (under the same title - SI 1989/153) is more interesting. It empowers the Governor, to the extent required to give effect to an international agreement which applies to Hong Kong, to repeal or amend any enactment so far as it is part of the law of Hong Kong (and to make laws having extra-territorial operation). The Berne Convention (the Brussels text) extends to, ie applies to, Hong Kong. The Hong Kong authorities and the FCO may be invited to consider whether (i) the power under the second Order of 1989 enables an amendment of the 1979 Order (SI 1715) to include China in the list of countries; (ii) if it does, would it mean that before the Order is amended the Berne Convention (Paris text) (to which China has acceded) must be applied to Hong Kong?; (ii) if the Paris text must be applied first, then whether this makes a nonsense of the use of the 1979 Order in view of the fact that the 1956 Act applies to Hong Kong and this does not meet the standards of the Paris text; (iv) if (iii) presents a problem, may there be an answer (a lesser problem) in not applying the Paris text to Hong Kong but, nonetheless, amending the 1979 Order to give China at least the Brussels text protection?
7 On the general point in paragraph 5 of Mr Sugden's minute, it does seen that we cannot update the Convention Orders made under the 1956 Act to take account of new Berne members under paragraph 36(2). This does present a problem for other dependent territories (unless there is something in the argument that some power lurks in paragraph 4(5) of Schedule 1 to the 1988 Act). The alternative is to extend the 1988 Act to them and to follow up with an extension of the application Order under section 157(3) of the 1988 Act.
hom
DS MANGAT