TNAG-2933-FCO40-4208-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1993 — Page 83

This advice replante

in M Manis draft tel.

Mr Morris HKD

RE

HKCD 340/1

From:0 Miss 139Brooks

Legal Counsellor

Date: 14 May 1993

NATIONALITY APPEAL PANEL

1. As you know, I spoke to Mr Osborne, Legal Adviser's Branch, Home Office about Mr Patten's proposal to establish an appeal panel. This would consist of a majority of Legco members and would advise him on late applications which the Director of Immigration would have refused to accept under the "special circumstances" provisions in the draft Order. I explained that the name "appeal panel" was perhaps a misnomer for what the Governor envisages as an advisory body. It was certainly not intended that it should be a body like the Immigration Appeal Tribunal, but rather, a body similar to the advisory body which advises the Governor under the Selection Scheme.

2. Your department's preference is that such a body would be set up on an administrative rather than a legal basis. This seemed acceptable to me at first, but after my research revealed that the advisory body advising the Governor on the Selection Scheme is set up under the British Nationality (Hong Kong) Act 1990, section 3(3) (a), I began to have some doubts. In discussing this with Mr Osborne, he noted that the body would be unable to make binding decisions unless the body was established by primary legislation. I explained that the body would not in fact be required to make binding decisions, but only to advise. (Incidentally, Mr Osborne made the further point that the Governor would be unable to bind himself to act on the views of the advisory panel, but would only be able to take its advice in reaching his own decision). As the advisory body was not intended to make binding decisions, Mr Osborne then proceeded to take a robust view about its basis. He advised that the body could be set up on an administrative basis. I agree generally with him, but I still have a niggling worry that the advisory body advising the Governor in the Selection Scheme is set up on a statutory basis for no obvious

reason.

3. As Mr Osborne is prepared to accept that the body can be set up on an administrative basis, I see no point in causing complications by insisting on a statutory basis. It seems that the Home Office Legal Advisers had some doubts as to whether the advisory body could be set up under the Hong Kong Act 1985 Schedule, paragraph 2(3). I think myself it may be possible to argue that the body could be set up using the Order-making powers in this paragraph; this would avoid primary legislation and the body could then be set up in the present draft Order. Mr Osborne and I agreed that if it had been necessary to seek a legal basis, the Home Office would have needed to approach the Joint Committee on Statutory Instruments to take their view as to whether the body could be established by the draft Order under the Hong Kong Act powers.

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