TNAG-2570-FCO40-3756-Future-of-Hong-Kong-localisation-of-laws-surrender-of-fugit-1992 — Page 46

Fikc 370/14

From:

CEN

IN BEGISOLY 1992

Miss S Brooks Legal Counsellor

Date:

27 November 1992

Mr Marshall

HKD

ра

15

30/0

от

SURRENDER OF FUGITIVE OFFENDERS:

1.

LOCALISATION OF LAWS

13.

Thank you for your minute of 25 November. I had not seen the earlier consultation paper; I think it must have been seen by Ms Barrett. I am consequently unaware of the request by the Hong Kong Government for an amendment to the Hong Kong

(Legislative Powers) Order 1986. Hong Kong telno 2730 of 19 November, paragraph 1 refers to this. Please would you let me see these papers.

Telno 2730, paragraph 3 refers to "the power to instruct". I would like to see background papers also on this please.

2.

3.

The Hong Kong Government ask whether prerogative Orders as distinct from statutory orders are "enactments" within the meaning of the Hong Kong Act 1985, Schedule, paragraph 3. I think the answer to this lies in the Schedule, paragraph 1, which defines "enactment" as "any provision of any Act, other than this Act, passed before the relevant date and any provision of an instrument made before that date under any such Act". This covers only statutory orders and not prerogative orders. As I am not familiar to the background to this subject, I do not know to what extent this affects Hong Kong Government's plans.

4.

I have only two comments on the draft consultation paper. In paragraph 8(a) there is a reference to "a legislative instrument" which is to be made under the proposed Fugitive Offenders Ordinance and the next sentence refers to "such Order". It would be clearer if the reference to "a legislative instrument" was replaced by the words "an Order". Secondly, in paragraph 10 (c) the word "solely" should be deleted from the second sentence. The implication otherwise is that the fact that the requests made by a country which is a member of the Commonwealth is a factor to be taken into account in reaching a decision on the request.

5.

I think that the Hong Kong Government should not hand over the paper to the Chinese until we have sorted out the problem of the prerogative orders problem. I would also like to know before the paper is handed over exactly what is being proposed

/as

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