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There are other provisions in the Bill which will help to ensure a smooth transition. First, clause 49 of the Bill provides that any appeal to the Privy Council in respect of which leave to appeal has been granted but which has not been finally disposed of before 1 July 1997 shall proceed in the Court of Final Appeal. That court is empowered to give such directions as to the continuation of the appeal as it thinks fit. We will discuss with the Judicial Committee of the Privy Council and the team designate of the Special Administrative Region the implementation of this transitional provision to ensure the orderly transfer of any business unfinished by 30 June 1997. In addition to clause 49, clauses 24 and 33 make it possible for appeals to the Court of Final Appeal to be made outside the normal period of 28 days if leave is obtained. This will enable the court to hear appeals from decisions made in the period shortly before the transfer of sovereignty.
Composition of the CFA
I now turn to the composition of the Court of Final Appeal which, as Members will know only too well, is based on the 4 plus 1 formula. This formula was agreed by the British and Chinese Governments in the Joint Liaison Group in September 1991. According to this agreement, the Court of Final Appeal, in every sitting, will consist of the Chief Justice, three permanent Hong Kong judges and one non-permanent judge, who could be either from Hong Kong or from another common law jurisdiction. The permanent and non-permanent Hong Kong judges could be either local or expatriate.
It has been argued that the 4 plus 1 formula breaches the Joint Declaration and the Basic Law. This assertion is not correct, and has been rejected by both the British and the Chinese Governments. Our view that the 4 plus 1 composition is consistent with the Joint Declaration and the Basic Law is supported by a number of authoritative and independent legal opinions.
I spoke at length on this subject during the Motion Debate in this Council on 3 May, and I will not repeat now what I said then. Suffice it to say that we have not the slightest doubt that the 4 plus 1 composition is a perfectly acceptable way of implementing the provisions in the Joint Declaration and the Basic Law that provide for judges from other common law jurisdictions to sit on the Court of Final Appeal. Indeed the Bill itself reflects this consistency. In Clause 5, which provides for the Constitution of the Court, sub-clause (3) includes the wording of the Joint Declaration and Article 82 of the Basic Law that "the Court may as required invite judges from other common law jurisdictions to sit on the Court". The 4 plus 1 composition is reflected in Clause 16(1) of the Bill, which specifies the composition of the Court when it hears a particular appeal.