CONFIDENTIAL機密
о
Secretary for Constitutional Affairs To (Attn: Mr J. Lai)
MEMO
Attorney General's Chambers
From
AGC ADV 5055/1C VII
Ref.
in..
867 2098
Tel. No.
19 August 1993
Date
1. 730
CAB A9/3
Your Ref.
dated
JA.
LEASE RATURA TA REGISTRY
Amendments to Letters Patent and Royal Instructions
I refer to the memorandum dated 6/7/93 from my colleague Mr Collins (110 in this series) and to our subsequent meeting (O'Neil/Lai).
2.
It became apparent at our meeting that the two amending instruments were not made until some time after the publication in the Gazette. On reflection T fool that it is appropriate that the views I expressed at the weeling are recorded in view of the potential serious
consequences.
3.
I had explained that what was published in the Gazette -had по effect and did not amend the principle instruments.
The amending instruments which were subsequently made have not, as yet, been published in the Gazette in Hong Kong. They have not been brought into operation as required by their own Citation Construction and Commencement clauses. It appears to me that the amendments are still not in effect and that the principle instruments remain in force in their original form.
4.
I am aware that it may be argued that the defect is procedural and technical and that it was cured when the amending instruments were finally made. I do not adhere to this view. In any case it still leaves a period between the publication in the Gazette and the date of making when the amendments were not in effect.
5.
It is appreciated that the instruments are Imperial Legislation and that they are the responsibility, and in the control, of the U.K. administration who will be guided by their own legal advisers. It is, however, the Hong Kong Government that will have to bear the consequences.
6.
There is, in particular, a danger that laws made since the date of publication in the Gazette may be called into question on the basis that the legislating body was not properly convened. I do not think that à court would accept this argument but the fact that it could be raised would be highly embarrassing.
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