TNAG-2738-FCO40-3951-Hong-Kong-Letters-Patent-1993-1993 — Page 68

1893-18-19S 17:59 A,G C

UPCC (Advisory I)

952 899 0670 P.02

Publication of Letters Patent/Royal Instructions

Time does not

permit the immediate completion of a

nitial

Cerment

more considered opinion as CAB need to give an urgent reply to FCO. The following is thus a "quickie" :-

2.

There i.s no absolute legal requirement that LP and RI should be published (whether specifically within the colony which they concern and affect, or elsewhere) before they are capable of producing legislative or other legal effects. However, general principles widely accepted as essential to common law systems (and here we are concerned with fundamental constitutional rules) demand that laws which are in force should be capable of being ascertained: i.e. there should be no secret laws. Indeed, laws of constitutional significance (amongst others) should normally be given publicity before they take effect..

3.

The present case is unusual and exceptional, however. The Instructions which are to be revoked never came into operation and have thus had no impact on the constitution. They have never been made public and so have raised no expectations and produce no effects. If their revocation is also hidden from the public the nett public effect is nil: noone is prejudiced.

4.

The

FCO

по see

to objection

Qute

what in Pomposi

While I am

asi.

revoking in secret, though I would not regard their view ав necessarily an deleted - inexorable revelation of eternal verity. mprintable concerned about establishing undesirable precedents, a thin end of a wedge of "secret laws", no actual harm would be done in the present instance since the status quo ante will have been maintained.

5.

to

IL

I Bhould add one caveat, however, An Index Government Orders is published annually in the UK. appears to contain, for example, a list of all Letters Patent and Additional Instructions affecting Hong Kong, which have been made from time to time together with the dates when they were made (not, I think, when they were published in the Colony). I cannot be absolutely sure, on the basis of the It materials available to me, whether it is a complete list. may be that it only

those instruments which were records subsequently published. There has been at least one previous occasion (in the 1970s, I think) when Letters Patent were withdrawn and not published.

fizar, their a pompon

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(James Collins ) Senior Crown Counsel (Advisory I)

19.10.1993

TOTAL P.02