TNAG-2204-FCO40-3160-British-Nationality-(Hong-Kong)-Act-1990-UK-undertakings-1990 — Page 68

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CC MR MCLAREN

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CONFIDENTIAL

From:

Paul Fifoot

MR PAUL

Legal Advisers

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Date:

20 December 1990

Mr Morris, HKD

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BRITISH NATIONALITY (HONG KONG) ACT: BRITISH UNDERTAKINGS

Your minute of 19 December takes us back to the issues which were discussed in August and September this year.

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2.

Section 1(5) of the Act provides that the courts shall not question the decisions of the Secretary of State or the Governor, by virtue of section 3 (4) of the Act, those of a Hong Kong public officer appointed by the Governor to exercise functions under a scheme. Section 1(5) does not apply to advisory committees or groups, because they do not take decisions. You will recall that the Attorney General's advice (Miss Marsh's letter of 13 August to Mr Seymour) included a passage ". . . . the Governor would be entitled to seek advice from others provided that the determination remained his own".

3. I seem to recall that we kept on hammering away at this point to the Governor when he was taking the line that he would want to say that any decision he took in relation to British undertakings was taken on the advice of an advisory committee. That won't do. The most he can say is that he has taken decisions after consulting and seeking the advice of an advisory committee or group.

4.

In addition to the dangers which could result from the Governor describing his actions in such a way as to deny effectively that he was taking a decision, we have always, been aware, as you will recall, of the possibility that the courts might seek to get round section 1(5) by attacking the procedures in advisory committees or groups. It is, therefore, necessary for the committees or groups to act in a responsible fashion. This would include, making sure that applicants who they are minded to turn down have had an opportunity to argue the case for the "Britishness" of the undertaking which they serve. One element which would contribute to such a process would be the disclosure of the kind of criteria which the advisory group proposes to adopt. The disclosure of that criteria in the terms of Miss Davis's letter to you of 28 September is not particularly

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CONFIDENTIAL