5. The above is in fact entirely consistent with the advice I gave in my minute of 30 July. I do not think that the thrust of your draft letter to HKG needs to be changed, but the explanation could be expanded drawing on the above.
6. Mr Mungat has pointed out that it follows from his interpretation that the Copyright (Hong Kong) (Amendment) Order 1990 is ultra vires (and therefore null and void). This is because it extended to Hong Kong for the first time the provisions of section 32 of the 1956 Act, subject to the modifications specified. This could have been done under section 31 of the 1956 Act before the 1988 Act came into force, but after that date the powers in section 31 were limited by para 36 (2) of Schedule 1 of the 1988 Act. He says that the Order was drafted by the FCO and he was consulted, but at the time he only considered the substance of the Order and not the powers to make it.
7. Unfortunately I can see considerable logic to Mr mungat's argument. We ought to draw it to HKG's attention and ask them whether any action has been taken under the 1990 Order, and what the practical consequences would be if the Order were found to be invalid.
8. Mrs Sullivan, on the other hand, says she has always understood that para 36 (2) could be used to extend the 1984 amendments to the 1956 Act to Hong Kong. HKG would appear to have made the same assumption. I think it is possible to argue that the wording of para 36(2) preserves all the powers in section 31 of the 1956 Act without limiting them in any way. One factor in favour of this interpretation is that the 1990 Order was made on this basis, and the powers to make it were not queried by the Parliamentary Joint Committee on Statutory Instruments, which is normally quite alert at spotting such defects. However, the Committee is not infallible, and the fact that they did not raise the point would not stop a court from declaring an Order null and void.
9. On balance, I still find the more restrictive interpretation initially arrived at by Miss Brooks and myself, and now fortified by Mr Mungat, more persuasive. Where there is such doubt about the powers, it would be foolish to rely on them to make an Order which might well prove to be a nullity.
10. As indicated in my previous minute, I cannot see any way of introducing the necessary legislation other than by local enactment. Even if we were able to make an Order, the next meeting of the Privy Council will not be until the end of October. Allowing for laying before Parliament, the earliest date for entry into force would be mid-November. Presumably if this is considered by HKG to be a matter of urgency, they could expedite the passage of a Bill through Legco as soon as the new session begins, though I am unfamiliar with the details of their procedures. This may prove to be the only practicable
course.
11. Mrs Sullivan suggested that alternatively the 1988 Act could be extended to Hong Kong. This is of course possible from a legal point of view. but I assume HKG would not wish to opt for this for the reasons she mentions. However I see no
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