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заку 19 Jomary, 6/ Aky ~~19/1
Legal Advisers
FROM : C A Whomersley
Legal Advisers
K174 270 3075
DATE :
17 January 1989
FUTURE OF HONG KONG
VARIOUS LEGAL ISSUES
1.
Two points occur to me. First, as regards appeals to the Privy Council, I wonder whether it would be worth asking the Lord Chancellor's Department if they would be prepared to include an appropriate provision in one of the Administration of Justice Bills which they frequently sponsor; after all, the matter does relate to the jurisdiction of the courts, albeit to hear appeals from Hong Kong, and the alternative will be for the FCO to promote a very short (perhaps one or two clause) Bill for the purpose, which might seem somewhat excessive.
2.
Second, we will have to consider carefully what legal arrangements are necessary in the UK in consequence of the transfer of sovereignty in 1997 (paragraph 1(d) of your draft below, and Mr Steel's minute of 6 August 1987, refer). I attach copies of the Orders made under the West Indies Act 1967 in respect of Dominica (which left HM Dominions upon independence to become a Republic) and St Christopher & Nevis (which remained in HM Dominions after independence). However, the case of Hong Kong will be rather different as it will leave the Commonwealth in 1997 (unlike the two Caribbean territories I have just mentioned). Also, a number of the provisions in the Orders relating to those territories will not be relevant to Hong Kong (for example, the provisions about visiting forces). Moreover, the Hong Kong (British Nationality) Order 1986 (made under paragraph 2 of the Schedule to the 1985 Act) makes certain
(and, I presume, all) e necessary changes in nationality law required in consequence of Hong Kong's change of status in 1997. In particular, under Article 7(3) of the 1986 Order, section 37 of the British Nationality Act 1981 is amended so that BN (0)'s are given the status of Commonwealth citizens, and section 51(1) and (2) of the 1981 Act sets out how the term "Commonwealth citizen" is to be construed in other Acts of Parliament; Article 7(9) of the 1986 Order, which amends section 51 (3) of the 1981 Act, is also relevant. Presumably the intention is (although HKD might confirm this) that after 1997 the privileges attaching to the status of Commonwealth citizens under the law of the United Kingdom will be enjoyed only by BN (O)'s, and not by any other categories of persons connected with Hong Kong.
C.A. Whomersley
CA Whomersley
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