TNAG-2670-FCO40-3867-Hong-Kong-reprinting-of-Colonial-Regulations-1993 — Page 5

Ph.02571

HUA 025/1

Ms Paris HKD

"From:

LAUG 1993

Miss S Brooks Legal Counsellor

Date:

6 August 1993

REPRINTING OF THE COLONIAL REGULATION

1.

While at first sight it seems useful to have a reprint of the Colonial Regulations which is just for Hong Kong, I have some reservations about the proposal of the Hong Kong Government to have a separate set of "Hong Kong Regulations". Although Hong Kong is in the second half of the transitional phase before the handover to the Chinese on 1 July 1997, nevertheless, Hong Kong will remain a colony until that date. Colonial Regulations will remain the correct description of regulations applying to Hong Kong until 1 July 1997. Secondly, the regulations are directions to Governors for general guidance given by the Crown through the Secretary of State for the Colonies; they are, in effect, directions of Her Majesty

(see Sir Kenneth Roberts-Wray's book "Commonwealth and Colonial Law" at page 239). Constitutionally the Crown would still be able to give such directions to the Governor until Hong Kong is handed over to the Chinese.

2. It is not clear to me against what background a new set of Regulations as proposed by the HKG would apply to Hong Kong. The Colonial Regulations obviously will cease to apply to Hong Kong after 1 July 1997, but as the whole essence of the regulations is that they are directions to Governors for guidance given by the Crown, how would the proposed new set of Hong Kong Regulations continue to apply to Hong Kong after 1 July 1997? It would seem that a new separate set of HKG regulations is not required; what is required is that any appropriate regulations which at present exist in the Colonial Regulations should be part of HKG's Civil Service Regulations after 1 July 1997. If only those regulations from the Colonial Regulations become part of the Civil Service Regulations, then regulations which are already catered for in the CRS or are antiquated, redundant, misleading, or would need to be the subject of legislation would be eliminated automatically.

3.

In conclusion, although at first Hong Kong Government's proposal does seem sensible, I do not see how a separate set of Hong Kong Regulations would fit in constitutionally. I do not see how it is possible to have a separate set of Hong Kong Regulations which exist in some vacuum, neither as Colonial Regulations nor as Hong Kong Government Civil Service Regulations. Nor I do not see how the proposed regulations

/would

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