TNAG-1517-FCO40-2078-Future-of-Hong-Kong-localisation-of-civil-aviation-legislati-1986 — Page 32

CONFIDENTIAL

(E)

(D)

There is no satisfactory way of defining what is permissible by way of extraterritoriality in the grant of power to a colonial legislature to legis- late for peace, order and good government or to define what is impermissible. One has to deal with the issue on a case by case basis. I have advised in the past that Hong Kong could provide for certain regulations which, inevitably, have extraterritorial effect under their existing power. The present Order will enable Hong Kong to go beyond their existing powers but one can- not exclude the possibility that, in the future, they may have to argue before a court that what Mr Heady refers to as the existing legislation was valid under the general power whereas later legislation is clearly valid under the present Order. The Hong Kong Act 1985 does not provide power to legislate with retrospective effect.

I was frankly very surprised that it could be suggested that the limited power of extension which the present Order proposes could in any way affect the comprehensive legislative power conferred by the Letters Patent. However, if this has occurred to someone in Hong Kong, it may be as well to make it quite clear in the text of the Order that the present powers are additional powers.

Catfor

Paul Fifoot Legal Advisers

CONFIDENTIAL