Extract from letter of 22nd November, 1965
from Mr. J. S. Fiennes, C.B. to Miss J. Davison
On the second point about divorces in Hong Kong, I agree with
the advice given at the Foreign and Commonwealth Office that the
transfer can be made under the 1946 Act. As I read the section in
that Act "theretofore" does not mean at some time previously to the
date of the Order, but up to the date of the Order; for one thing
one cannot "transfer" what has lapsed and clearly we are not in a
position to revive all the medieval powers by transferring them to
new Ministers. However this power is still exercisable by the
Colonial Secretary, if the Queen chooses to appoint one - as she
still could do. And it seems to me therefore that the Order could
be made.
It will however look very odd, and I am not convinced that it
cannot be done by a further Order in Council under s. 2 of the Indian
and Colonial Divorce Jurisdiction Act 1926 (which incidentally is
not subject to any Parliamentary procedure). It is true that
there is no express power to amend the Orders in Council (and there-
fore probably no power to do so), and the Order did not reserve a
power to amend it as is some times done. Nevertheless the present
Order has become in part ineffective, and in those circumstances I
should have thought that the original power under Section 2 to
"provide for applying" s. 1 of the Act subject to the necessary
modifications to Hong Kong extended to supplementing the existing
Order with the necessary new modification. If the existing Order
lapsed because the court at which jurisdiction was conferred ceased
to exist, one could surely make a new Order. However if the depart-
mental lawyers are not happy with this, I should not want to press it.
No comments yet.
Private notes are available after approval.