TNAG-2738-FCO40-3951-Hong-Kong-Letters-Patent-1993-1993 — Page 140

13-JUL-1993

16:51

CONSTITUTIONAL AFFAIRS BR

+ 852 840 1976

P.03

CONFIDENTIAL T

봐 Ys

MEMO

From Attorney General's Chambers

Ref. (110) in AGC ADV 5055/1C VII (JC)

TSecretary for Constitutional Affairs

(Attn: Miss Vivian Sum

Tel. No.

867 2130

Your Ref..................in CAB A9/3

.יו

Date

6 July 1993

doted

29 June 1993.

TAKANA Kata23945

G.r. 73C

PLEASE RETURN TO REGISTRY

Amendments to Letters Patent and Royal Instructions

་་་་་་་

The final paragraph of the letter from Mr Nigel Whitney of FCO, which you kindly copied to

to us, raises some serious

concerns.

2.

as

The Hong Kong Letters Patent 1992 and the Hong Kong Additional Instructions 1992 ostensibly came into operation by their own terms 19 February 1993, the former having been published in the Hong Kong Government Gazette on 18 February 1993 and the latter on 19 February 1993. These instruments, gazetted, each purport to have been made by Her Majesty on 17 December 1992.

3.

Mr Whitney's letter now reveals that the Privy Council Meeting of 17/12/92 merely "approved in principle" the amendments to the LP and RI, and that when we in Hong Kong were informed that these instruments could be gazetted, they had not in fact received the Queen's signature.

4.

It seems we need to discover the precise chronology of the esseniiai sieps needed to give the améñûments the force of active law. Roberts-Wray (Commonwealth and Colonial Law, p. 144) states that Letters Patent become law on the affixing of the Great Seal (which, I have always understood, is held in the custody of the Lord Chancellor), and that this is done on authority of a warrant bearing the Queen's signature. All that happened on 17/12/92 was that Her Majesty approved and ordered the Foreign Secretary to cause that necessary warrant to be prepared for Her Majesty's signature.

5.

The principal Royal Instructions (at least) were passed under the Royal Sign Manual and Signet, and I presume that amendments are made in the same way. When one examines the instrument which issued out of the Privy Council on 17/12/92 in respect of the RI amendments one discovers that what actually happened is that Her Majesty approved the amendments and ordered the Foreign Secretary "to prepare the said Instructions for Her Majesty's Royal Signature.

"

Additional

2272

FFAIRS

Dure 7. JUL 1993 INWARD LETTER

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