TNAG-2819-FCO40-4068-Future-of-Hong-Kong-International-Rights-and-Obligations-(IR-1993 — Page 18

Parliamentary

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balance a

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CONFIDENTIAL

view that, on balance a court would be more likely to uphold the validity of the 1990 Order.

5.

On

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Having reviewed carefully the various arguments we remain of the opinion that there is room for more than one legal view as to the validity of the 1990 Order. On one hand Mr Whofmersley considers the 1990 Order to be valid, as did Mr Mangat at the time it was drafted, and the vires were not queried by the Joint Committee on Statutory Instruments. the other, Mr Mangat is now firmly of the view that it is invalid, and Ms Barrett and Ms Brooks, the Legal Counsellor, find his arguments persuasive, although they can see the force of the other view. As there is such doubtsover the scope of powers we think that it would be more prudent not to rely on them. Use them in this way in the future.

6.

In conclusion, it is for you to consider the various legal opinions provided here and by your own legal advisers, and to decide whether to live with the doubts about the

he/1990

the

validity of the

Order or take remedial action. One possibility may be to might be to

live with the doubt, but include in the legislation which you have in preparation provisions giving retrospective cover for anything done under the 1990 Order. Obviously it is also open to you to seek independent advice from a specialist practitioner.

Annadele Bouch

Hong Kong Department

SubTV7

AB

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