TNAG-2286-FCO40-3289-Extension-of-Official-Secrets-Act-1989-to-Hong-Kong-1991 — Page 40

Comments on Hong Kong telno 2236

a) The "vires" problem to which we referred in FCO telno 1268

The concerns the use of the word "specify" in the "vires". Counsel to the Speaker of the House of Commons takes the view that the word "specify" which means "name expressly or name definitely" requires the modifications, exceptions and adaptations to the Act to be mentioned expressly or mentioned definitely. We do not necessarily accept that orders which extend Acts to dependent territories must be drafted in the way in which the present draft Order is drafted. FCO practice is mixed eg the example you mentioned in your paragraph 2 of HK telno 2236. However in your interests, it seemed desirable to ensure a smooth run without criticism by the Joint Committee on Statutory Instruments to draft it this way. However we will try to meet your concerns where this is possible. We will append the adapted text to the Act as a Schedule where the "vires" permit this. In this particular case, you can presumably gazette the Act with the exceptions, modifications and adaptations made by the Order.

b) There is a real problem with the definition of "international relations". The agreements to which you refer are entered into under entrustment from the UK. Cumbersome though it is, we suggest the true position would be more accurately set out if section 3(5) were to read as follows:

"is capable of affecting the relations of Hong Kong in respect of economic and trade matters or the United Kingdom in respect of Hong Kong other than in economic or trade matters or the United Kingdom with another territory or state or with an international organisation.

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c) The reference to "defence" in section 6(1) is no longer a problem now that the words "disciplined forces of Hong Kong" have been removed from section 2(4). The word "defence" does not appear in section 3(5).

d) We will redraft section 4(3)(a) as you wish.

e)

We intended to ask for an explanation of the particular definition used for "Crown Servant".

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£) We will include British subjects for the sake of completeness.

g)

Your paragraph (e). You do not appear to have given us any drafting suggestions.

h)

We do not read the definition of "international organisation" as you do. We suggest that we refer to "states or states and territories".