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limited to having the 1988 act extended to them or to enact the desired new provisions locally. Mr Mungat refers to this in his minute of 4 August. Mr Whomersley commented that if that was the policy behind the drafting of the 1988 Act he was not aware of this and does not recall being consulted on this by DTI at the time. (He was HKD's legal adviser in 1988). He also commented that if the effect of the 1988 Act is as Mr Mungat believes, it is extremely inconvenient for the DTs, since extension of that Act would be an enormous task and inappropriate in most if not all cases. Nor would a combination of Orders and local legislation be a helpful result.
5. I would suggest that it is now for HKG to consider the various legal opinions provided here and by their own legal advisers, and decide whether to live with the doubt or take remedial action. It may be be that they could live with the doubt for the moment but include in the legislation which they have in preparation provisions giving retrospective cover for anything done under the 1990 Order. Obviously it is open to them to seek independent advice from a specialist practitioner should they so wish.
6. I have found on the 1990 file a letter from Mr Whomersley to Mr Mungat dated 11 July 1990 in which he refers to the possible problem over vires and his relief that the vires were not questioned by the Joint Committee. He does not recall whether these doubts were discussed with HKG at the time, and I have not found any record of this, but he does recall that HKG were extremely anxious to have this order and wanted it done quickly. This explains why the Order went ahead, though if HKG were not made aware of the possible problem at the time, it is of course understandable that they should be annoyed to have it pointed out now.
7. When I wrote the above last week (it is now 4 Nov) I intended that this minute should also cover the question you referred to me from HKG concerning their powers to enact the local legislation. Unfortunately owing to the time I have had to spend this week on the FAC hearing, I have not yet been able to study this, and will be at a conference all day tomorrow. I am therefore sending you the above now so that you can draft your reply on these points, and will return to the draft local legislation next week.
JiM Bany
Jill Barrett
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