TNAG-2875-FCO40-4147-Future-of-Hong-Kong-localisation-of-laws-surrender-of-fugit-1993 — Page 117

Mr Bunten

HKD

From:

370/16

2.00.1993

Miss S Brooks

Legal Counsellor

Date: 15 October 1993

CC: Ms Barrett, Assistant

Legal Adviser

SURRENDER OF FUGITIVE offendeRS:

LOCALISATION OF LAWS

1. I am happy with the proposal of the Hong Kong Government that a new Hong Kong (Legislative Powers) Order be made under the Hong Kong Act 1985, Schedule, paragraph 3. It would be an Order amending the Hong Kong (Legislative Powers) Order 1986 by adding to paragraph 2 of that Order as item (iv) "surrender of fugitive offenders". The Hong Kong Government normally enters into bilateral agreements on fugitive offenders between itself and other governments, but the Commonwealth scheme is not dependent on agreements between Commonwealth countries. It is based upon a system of parallel legislation. The present powers in the Hong Kong (Legislative Powers) Order 1986 and in the corresponding Order of 1989 do not enable the Hong Kong Government to legislate to give effect to the Commonwealth scheme. This would involve legislation with extra territorial operation. As the scheme involves parallel legislation and not international agreements, it falls outside the 1989 Order since the 1989 Order only enables the Hong Kong Government to legislate extraterritorially in order to give effect to international agreements, although these would include ones on the surrender of fugitive offenders.

2. The Hong Kong Government prefer to amend the 1986 Order rather than have a new Order in order to play down the significance of the change and to show it is not a new departure. They also wish to link the surrender of fugitive offenders with civil aviation. I am unclear why these two subjects are related. They also suggest, and they are incorrect in this, that it would make the legislative procedure in London easier. The Order should, however, be

straightforward, although it will require to be made subject to amendment in pursuance of a resolution of either House of Parliament (we will need plenty of time to make it).

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