TNAG-2322-FCO40-3366-Hong-Kong-Bill-of-Rights-amendment-to-Letters-Patent-1991 — Page 8

CONFIDENTIAL

However, there is no compelling reason of law, logic or convenience for perpetuating the anomalies of a divided jurisdiction over charitable gifts. In order to provide a practical and just procedure which will continue to be effective for the future, we propose to introduce local legislation, by inserting a provision in the Probate and Administration Ordinance, to transfer this prerogative power in respect of administering bequests for unnamed charitable purposes from the Crown to the courts, so that in future its exercise would fall entirely within the judicial power to be administered by the court in more or less the same way as the court directs a scheme for defining the scope and objects of a charitable trust, and for regulating its execution.

✓

You may like to note that this suggestion was first made by Mr. Fifoot the Legal Adviser of your office back in 1985.

We are aware that Royal Instruction XXVT(8) requires that the Governor shall not assent to 'any Bill of an extraordinary nature and importance, whereby Our (Royal) may be prejudiced'. Our legal advisers are of the view that the proposal is not affected by this provision, but you may wish to confirm this with your legal adviser.

prerogative

on

We consider this proposal falls outside the scope of the guidelines agreed with the Chinese for consultation the adaptation and the localisation of laws. It is true that our proposal seeks to enact as local legislation an aspect of the prerogative relating to charitable bequests. However we

are not committed to consultation on localisation of laws other than enactments. Since this proposal is not aimed at making the enactment in question consistent with the Basic Law, it is not an adaptation exercise that requires consultation with the Chinese. Moreover, the proposal is only of a very minor nature and unlikely to attract the Chinese side's attention. But we shall be happy to give the Chinese side information if necessary. UKREP JLGHK concurs with this approach.

The objective of the proposed amendment is to rationalize and simplify the procedure for executing testamentary gifts for charitable purposes.

Since this involves the question of royal prerogative, we would like to consult the FCO first before proceeding and should be grateful for your views. In case this does not come under your responsibility I would be grateful if you would pass it to the officer who is responsible for this subject.

Yours,

Rickend Yuen

(Richard YUEN )

for Director of Administration

CONFIDENTIAL

3

Mr Riordan

HKD

WH 305

BILL OF RIGHTS

1. Thank

on the

you

a

fa

copying

two recent

Reference

(12

I thie 241/3

BOR

me

06 DLI

Mr Bradley's

cases

summaries and judgments. They

and

Mr-

Leing's note

is

s letter

and the enclosed

are indeed

of interest

most helpful. As we

discussed on the telephone, it would be useful to have regular report from HKG on the progress of BOR litigation, public reaction to it, and achon taker by

HKG

in

response.

2. On the functional constituencies issue, I have read

I Mr Deane, There

the two papers by,

Mr Deane. There is not a

great difference between his views and mine; I think we

that (i) there is

both

agree

(ii) that there are

itka

a riste of legal challenge; good arguments that the can use

election; (iii) the risk

to defend this method

g

adverse finding by the courts

of

an

is low, but nevertheless

exists, I would not however favour

amendment

to the Letters Patent to put the matter beyond doubt,

as this would be inconsistent with the recent

amendment

to entrench the provisions of the ICCPR,

I doubt there is eliminate the risk.

any

action

we

can take to

CODE 18-77

3.

CODE 18-77

Reference

On the question of the risk of

to the

minimom

a BOR challage

ou

voting age (para Go I think that the risk of on this point is

a court

Tel No. 1263), adrese finding by Somewhat greater. The best

it is fo

ал

The best way of avoiding

HKG to reduce the

the age of majority,

ie, 18

minimum age

In view of Mka's

to

stated intention of reviewing the voting gee before the 1995 elections, I suggest there is no need for us

to

pursue note of time in the future bite the bullet.

this point now,

but that we make a

it, and at some

we encourage.

suitable

them to

Will Banett

Asst. Legal Adviser

K174

3381

26/9/91