TNAG-2819-FCO40-4068-Future-of-Hong-Kong-International-Rights-and-Obligations-(IR-1993 — Page 54

OCE 18-77

AUG '93 16:02 DTI SOLICITOR'S DIVN

P.3

Reference.

5 Paragraph 36(2) of Schedule 1 to the 1988 Act (a saving provision) left in place any Order in Council which was in force immediately before commencement in respect of any provisions of the 1956 Act extended to a dependent territory. It is permitted, while the Order is in force, to vary those provisions. The effect of t is that the scope of the 1956 Act as extended prior to 1 August, 1989 is fixed; alı that is permitted is a variation of the provisions within that scope. The justification for the 1990 Order is that section 32 was extended to Hong Kong by the 1972 Order and all that the 1990 Order does is to vary it, disappears

6 By contrast, and as a general indicator of policy on this, paragraph 31(1) is far more restrictive; the 1911 Act remains in force, with no power to vary or modify, until replaced by the new Act or, presumably, revoked on enactment of other legislation in the territory concerned. On that basis it is arguable with some conviction that the power to vary under paragraph 36(2) cannot be construed so liberally as to permit the extension of provisions of the 1956 Act (new or old) which at 1 August 1989 had not been considered necessary or appropriate. I the FCO view that paragraph 36(2) only empowers variations of the provisions extended etc by the 1972 and 1977 Orders. Section 311) of the 1956 Act must now be construed with that limitation on the power there to extend any provisions, Including "any enactments for the time being in force amending or substituted for those provisions".

agree with

DS MANGAT