hkrs163-1-2395-emergency-legislation — Page 12

, 1962.

A. 180/53.

A. 1/54.

Clerk of Councils.

•

Enactments.

Defence Regulations 1940. Reg. 37.

-G

4

Departments consulted in addition to Defence Branch

Corresponding Emergency (Principal)

Regulations.

D. of M.

42

·

39.

D. of M.

53

"

43.

D. of M.

-

Manager of Railway

☐ 46.

D. of M.

D.C. & I.

62

"

47.

D. of M.

Manager of Railway

63

.

50A.

D. of M.

D. C. & I.

73

54.

79

55.

D. of M.

D.C. & I.

67

"

56.

D. of M.

70

57.

D. of M.

71

73

D. of M.

D.C. & I.

P.M.G.

96

1.

Defence (Bunker Coal and Oil)

D. C.& I.

Order 1940; made under D.R. 46.

2.

Port Executive Committee Order, 1946

D. of M.

3.

Order made in 1946 relating to requisitions, under D.R.53.

4.

Prohibited Exports Order, 1946, made under D.R. 50

D.C. & I.

5.

Marketing of Fish Order 1946

C.C.D.& F.

6.

Marketing (Marine Fish) Order, 1950

7.

Marketing (Marine Fish) Authorized Officers Order, 1960

"

Miscellaneous items.

Emergency (Anti-Aircraft Gun Practice) Regulations, 1949

Emergency (Arms and Ammunition) Ordinance, 1933)(Amendment)
Regulations, 1950

Remarka

D. of M. recommends extension of EPR.57 to cover "docks, harbour,
typhoon shelter, wharf, quay, or pier."

Manager of Railway would like eventual amendment to Railway Hop afatione
to cover thie power.

Completely covered for time being by Req. Reg. 7, in addition to E.P.R.

Completely covered for time being by Req. Reg. 4, in addition to E.P.R.

Obsolete.

Revoked in 1954, and apparently included

in the Schedule in error.

Fallows AR 55.

Obsolete.

To be replaced by Marine Fish (Marketing) Ordinance 1956, which is

to commence in same week.

n

"

Military Authorities.

C.P.

These automatically become obsolete with revocation of D.Rs 50A, 73, and
the Marketing (Marine Fish) Order, 1950.

All future anti-aircraft firing to take place under Defences (Firing
Areas) Ordinance.

Unnecessary, since Governor has power to exempt classes of person from
cap.a3 see definition of "exempted person".

Obsolete.

Obsolete.

Obsolete.

Emergency (Defended Areas) Regs. 1951 Emergency (Essential
Supplies) Regs. 1952 Emergency (Immediate Resumption) Regs. 1952

Emergency (Immediate Resumption) (Application) Regulations, 1953

D.C. & I.

Lands Branch.

Emergency (Immediate Resumption)

(Application) Regulations, 1954.

6.5

From

G.F.

100-2

CONFIDENTIAL

Ref... (43)

Attorney. General

Tel. No. 95265

MEMO

To..

in AGO 8/1.250/62

Your Ref.

in

6/3231/567

CONFIDENTIAL

(114)

Hon. Colonial Secretary..............................

Date 5th December, 1962

dated

85

see (113)

Revision of Emergency and

Defence Regulations.

You will recall that in Savingram No. 797 dated 17th April, 1962, from
H.E. the Governor to the Secretary of State for the Colonies, it was
indicated that by the end of this year only three sets of Emergency
Regulations, made under the Emergency Regulations Ord- inance, Cap. 241,
would still be in existence. In addition an undertaking was given that
the need to keep in force any of the Emergency (Principal) Regulations,
1949, at present in operation, would be reviewed. Although the estimate
of the amount of emergency legis- lation in force at the end of 1962 has
proved somewhat optimistic, a good deal of progress has been made, and I
propose, if you agree, to prepare a draft Savingram at the end of the
year setting out the position, and giving a programme of how the
remaining regulations will be dealt with.

2. In addition to the limited review suggested in the Savingram, I feel
that the time is long, overdue for a major review of all temporary
wartime and emergency legislation still in operation. I include the
following regulations in this category

-

(a) All regulations made under the Emergency

Regulations Ordinance, Cap. 241, including the Emergency (Principal)
Regulations, 1949.

(b) All regulations and orders, kept in operation by the Defence
Regulations (Continuation) Ordinance, 37 of 1958.

(c) The Compensation (Defence) Regulations, kept in operation by the
Emergency Powers (Exten- sion and Amendment Incorporation) Ordinance,
Cap. 251.

(a) Certain proclamations of the British Military

Administration kept in operation by the Law Amendment (Transitional
Provisions) Ordinance, Cap. 257.

3.

These regulations fall into one of three categories -

7629

5/2

WARD

WITER

(a) those required to be kept in permanent operation (which should be
incorporated into the Permanent Law);

(b) those which have already been superseded by the

permanent law (which are thus obsolete and can be immediately revoked);

(c) those which are not required to be in operation at present, but
might be needed in the event of a full emergency (in which case they
should be revoked, and held in draft form ready to be made if a full
emergency arises).

CONFIDENTIAL'

I

2.

CONFIDENTIAL

40

Good progress is already being made in sifting the regulations, in the
light of the principles set out in para. 3. However, this task would be
made considerably easier for this department if you would be prepared to
circularize all departments, setting out the following pro- cedure

-

(1) It is proposed to revoke by the end of June, 1963,

all Emergency Regulations, Defence Regulations, and B.M.A. Proclamations
still in operation and any such regulations which are on the Statute
Book and have not been brought into force, with the exception of the
Emergency (Deportation and Deten- tion) Regulations 1962;

(2) Any department wishing to retain any powers con-

ferred by any such regulation must put a case

for its retention, such case to be made not later than the end of
January 1963.

(3) The Legal Department (in particular Mr. Davidson)

will be available to assist departments in deciding whether powers are

-

(a) adequately covered by existing legis-

lation;

(b) not required; or

(c) required and how the contents can best

be incorporated in the permanent law.

If this is done I will ensure that the necessary drafting is done by the
end of June, 1963 -

(a)

(b)

to enable all emergency legislation to be revoked, with the exception of
the Emergency (Deportation and Detention) Regulations, 1962; and

to incorporate into permanent legislation those powers for the retention
of which a good case has been made out.

I would like to say that all departments consulted so far have been most
helpful and cooperative and have only sought the retention of really
necessary powers.

5. I feel that the time is also overdue when we should revise our policy
with regard to emergency legislation gen- erally, and in particular as
to the future of the Emergency (Principal) Regulations, 1949.

The Emergency (Principal) Regulations were enacted in December, 1949,
under the Emergency Regulations Ordinance, Cap. 241, and contained a
provision enabling individual regu- lations to be brought into operation
by notice by the Governor.

Since then the Principal Regulations have remained on the Statute Book
and a large number of them has been brought into operation by notice. In
addition, separate sets of amending regulations have been made since
1949.

6. In my view, it is a grave misuse of Cap. 241 (Which is intended to
enable regulations to be made in an emergency or in case of public
danger) for regulations made under it to

CONFIDENTIAL

I

This towel be Niemi!

An Ending the

7

-3-

CONFIDENTIAL

remain in force when there is no emergency or public danger. So far as
those regulations which have been made by the Governor in Council and
not brought into force are concerned this is equally objectionable; into
force by order, which is really an usurpation of the

the Governor can bring them functions of the
Governor in Council, who alone, under Cap. 241, should decide when there
is a situation justifying the bringing into force of emergency
regulations made under that Ordinance.

·

7. The existing regulations under Cap. 241 also present practical
difficulties. Once brought into force they cannot be amended, unless
there is an emergency or public danger at the time of amendment; this
prevents them from being revised from time to time in the light of a
changing situation.

So
far as the Emergency (Principal) Regulations are concerned, once a
regulation has been brought into force by the Governor, it cannot be
taken out of operation again; it can only be revoked and subsequently
replaced. This means that a number of the Principal Regulations are
still in force although the need for them has disappeared.

powers

8. In peace time there will always be criticism of any legislation which
suggests the use of emergency or is said to be af an emergency nature.
The word "emergency" quite justifiably, carries with it a suggestion of
arbitrary powers and of a circumvention of the ordinary law and the
basic safeguards of the subject. Many provisions, which would cause
opposition and criticism if embodied in emergency legis- lation when
there is no prevailing emergency,can be put into permanent ordinances
without the same reaction, since the latter course involves public
debate during the passing of the Bill and makes the Legislation part of
the ordinary law. By putting what we need into Ordinances, we avoid the
sort of criticism which we have had recently from "Justice". I know of
no other Colony which has retained emergency legis- lation on the
statute book when there is no emergency.

9. I am, therefore, strongly of the opinion that both on practical
grounds and for reasons of principle, the whole of the Emergency
(Principal) Regulations should be revoked. This can be done as soon as
the regulations coming within category (a) of Para. 3 have been
incorporated into the perm- anent law.

10.

It seems to me that there are three types of emer- gency for which
regulations may be required in the future, and for which we must be
prepared

-

(a) A full scale emergency.

The normal colonial procedure, and one which is favoured by the
Secretary of State, is to have a full set of regulations prepared and
set up in proof form by the Government Printer; these can then be held
in readiness, and kept under constant review. These regulations would be
drafted under the auth- ority of the 1939 Order-in-Council, (a copy of
which is attached to this meme) and would become effective only in the
event of a full scale emergency. The power to make regulations under
this Order-in-Counc is as wide as under our Ordinance, the main differ-
ences being that it is the Governor alone who makes them and that the
Governor must first make a formal proclamation of a state of emergency.

CONFIDENTIAL

-4-

CONFIDENTIAL

(b) Other emergencies.

It may be necessary to enact emergency regulat- ions from time to time
in unforseen circumstances falling short of a full scale emergency. The
recent immigration crisis is one example. In those cir- cumstances it
would be perfectly proper to make regulations under Cap. 241 to deal
with the situa- tion, as necessity arises, so long as they are re- voked
as soon as the necessity for them has lapsed.

(c) The Atomic Emergency.

The detailed regulation which would be made un- der para. (a) above
would not properly meet a situ- ation in which atomic attack were
expected or feared For that situation, with a possibility of a complete
breakdown of everything as a result, and of panic, all you really need
is a sort of "martial law" pro- vision empowering soldiers and police to
do any- thing, take anything or give any orders whatsoever, with the
right to kill on the spot in the event of obstruction or failure to
obey. This is a rather separate issue, which could be considered, I
think, when the rest of the regulations have been tidied up, but should
be kept in mind for future consider- ation and action. Again regulations
of this kind would be made under the 1939 Order-in-Council and kept in
proof form by the Printer.

11. I would be obliged for early consideration of the proposals outlined
in this memorandum, as if they are accepted, adherence to the programme
mentioned in para. 4 will only be possible if Departments are informed
before the first of January 1963.

In view of our undertaking to the S. of S. this matter is urgent and the
Solicitor General who has been work- ing on this proposed revision in
counsultation with me, is ready to discuss any point which you may wish
to have clari- fied.

All Reyes

(M. Heenan.) Attorney General.

/mmr

Anso by (121)

CONFIDENTIAL

་་

APPENDIX

AT THE COURT AT BUCKINHAM PALACE

The 9th day of March, 1939

Present

The King's Most Excellent Majesty

Marquess of Zetland Lord Chamberlain

Sir Hugh O'Neil

Mr. Chancellor of the Duchy of Lancaster

Whereas it is expedient to make other provision than that now existing
for the security in time of emergency of the colonies and protectorates
mentioned in Part I of the First Schedule to this Order, and of the
territories in respect of which a man- date on behalf of the League of
Nations has been accepted by His Majesty mentioned in Part II of the
said Schedule:

Now, therefore, His Majesty, by virtue and in exercise of the powers
vested in Him by the British Settlements Act, 1887, the Foreign
Jurisdiction Act, 1890, and of all other powers enab- ling Him in this
behalf is pleased, by and with the advice of His Privy Council, to
order, and it is hereby ordered, as follows :-

1.

2.

PART I

GENERAL

This Order may be cited as the Emergency Powers Order

in Council, 1939.

(1) In this Order, unless the context otherwise

requires

"territory" means any territory mentioned in the First Schedule hereto
and its dependencies, and includes the territorial waters, if any,
adjacent thereto;

"Governor" means, in relation to any territory, the Governor of the
territory :

Provided that

(a)

(b)

(c)

K

in relation to Basutoland, the Bechuanaland Protectorate and Swaziland,
it means her Majesty's High Commissioner for Basutoland, the
Bechuanaland Protectorate and Swaziland;

in relation to the British Solomon Islands Protectorate, the Central and
Southern Line Islands Colony and the Gilbert and Ellice Islands, it
means the High Commissioner for the Western Pacific;

in relation to Nigeria, it means the Gover- nor-General of the
Federation of Nigeria;

and

(a) in relation to Zanzibar, it means the

British Resident."

"law" includes any Order of His Majesty in Council except this Order,
and any Ordinance, order, rule, regulation, by-law, or other law for the
time being in force in the

territory

}

3.

-2-

(1A) Any reference in this Order to an officer by the

term designating his office shall be construed as a refc.ence to the
officer for the time being lawfully discharging the functions of the
office and shall include, to the extent to which a deputy is authorised
to discharge those functions, that deputy."

(2)

The Interpretation Act, 1889, shall apply for the interpreation of this
Order as it a plies for the interpretation of an Act of Parliment.

The provisions of Part II of this Order shall have effect in any
territory which they shall from time to time, in case of any public
emergency, be brought into operation by Proc- lamation made by the
Governor, and shall continue in operation until a further proclamation
directing that they shall cease to have effect is made by the Governor,
and shall then cease to have effect except as respects things previously
done or omitt- ed to be done.

4. The orders specified in the Second Schedule hereto shall be revoked
as from the first day of June, 1939:

Provided that nothing in this revocation shall affect any Regulations
made under any of the Orders hereby revoked and in force in any
territory on the date aforesaid, but all such Regulations shall continue
in force until revoked, or until amended or varied by Regulations made
underPart II of this Order.

5. His Majesty may from time to time revoke, add to, amend or otherwise
vary this Order.

6.

(1)

(2)

Part II Regulations.

The Governor may make such Regulations as appear to him to be necessary
or expedient for securing the public safety, the defence of the
territory, the maintenance of public order and the suppres- sion of
mutiny, rebellion, and riot, and for main- taining supplies and services
essential to the life of the community.

Without prejudice to the generality of the powers conferred by the
preceding subsection, the Regul- ations may, so far as appears to the
Governor to be necessary or expedient for any of the purposes mentioned
in that subsection

(a)

(b)

make provision for the detention of persons and the deportation and
exclusion of persons from the territory;

authorise

(1)

(11)

(c)

-

the taking of possession or control, on behalf of His Majesty, of any
prop- erty or undertakings;

the acquisition on behalf of His Maj- esty of any property other than
land;

authorise the entering and search of any pre- mises;

!

7.

(a)

(e)

(f)

(g)

-3-

provide for amending any law, for suspending the operation of any law
and for applying any law with or without modification;

provide for charging, in respect of the grant or issue of any licence,
permit, certificate or other document for the purposes of the
Regulations, such fee as may be prescribed by or under the Regulations;

provide for payment of compensation and re- numeration to persons
affected by the Regul- ations;

provide for the apprehension, trial and pun- ishment of persons
offending against the Regulations;

Provided that nothing in this section shall authorise the making of
provision for the trial of persons by Military Courts.

The Regulations may provide for empowering such author- ities or persons
as may be specified in the Regulations to make orders and rules for any
of the purposes for which such Regulations are authorised by this Order
to be made, and may contain such incidental and supplementary provisions
as appear to the Governor to be necessary or expedietn for the purposes
of the Regulations.

8. A Regulation or any order or rule made in pursuance of such a
Regulation shall have effect notwithstanding anything inconsistent
therewith contained in any law; and any provision of a law which may be
inconsistent with any Regulation or any

such order or rule shall, whether that provision shall or shall not have
been amended, modified or suspended in its operation under section 6 of
this Order, to the extent of such inconsistency have no effect so long
as such Regulation, order or rule shall remain in force.

9. Every document purporting to be an instrument made or issued by the
Governor or cher authority or person in pur- suance of this Order, or of
any Regulation, and to be signed by or on behalf of the Governor or such
authority or person, shall be received in evidence, and shall, until the
contrary is proved, be deemed to be an instrument made or issued by the
Governor or that authority or person.

FIRST SCHEDULE

PART I

Colonies and Protectorates

Hong Kong

ENCLOSURE NUMBER: 115

HAS BEEN REMOVED TO : COUNCILS DIVISION

AND IS NOW ENCLOSURE NUMBER :

3

IN FILE NUMBER : COU CR 4/1136/62

PROFORMA A

ENCLOSURE NUMBER: 116

HAS BEEN REMOVED TO: COUNCILS DIVISION

AND IS NOW ENCLOSURE NUMBER :

4

IN FILE NUMBER : COU CR 4/1136/62

PROFORMA A

From

73 A

Dircotor of Cormaroo and Industry

MEMO

17

COLFID

To Logra Depurtat (alta, its. Bevidsai) (2)

Telephone 445070

Your Ref:

in.

Date..

1th Locuber, 1962

My Ref:

(22)

in 41 1/62

(15)

GF

85

1) Tovision of : ofendo & Facronov, o ulat qua 2) Anated foot and roule
cu 110 1102

GR /

I pelor tu aj mono.ancun (10) în (2. 41.2/62 CE 1902 me subacquent
disclusions of the most noc and perjancy Hojdi kiungo botucon Nesars.
Devidson and Jeoffrosul.

2.

I uncooptand that you will now roccft the following: zopustians' viách
taco tu lo pro užuted valur the Lovisou importation

and gatetlen weinnco, so that they can be uncatcu unus the present
Greirunco :-

FIN 413231/47

3.

1) Importation and Mportation: (Licchain) Rojul: tion → l'y

DLDO. EDGE CR 1100/00 03 2jrd Decatber, 1901, 6th Janu ry, 1962 and 19th
February, 1962, refer.

ii) part tion and patetion (Dicotion (ruoro) "qjulating -

by nono, undan (95) în î: 4257/10 of 11th combay, 22 Pea:16.

iii) ppropriato rojuletions to dispose with the heaty

(Import:tion and spa tɩtion L. dân neoj ? jumtico 1953, 1998 and 1995.

A problen hos crison out of the Imported feet end ruulty Nejuletions
(1902) w doh pro claoted under to Fub de fie: 4th and Servicco Orcân noo
1962 and thich will come into fa so on Cast "aroh, 1963. Although, at
the Cano the regulations mera Auftod > Director of Brian torvicoo thou
hit ho coul control No impart es meet tithout colling upon t 10
ecpartment (Director of buben vervlova neno- rakum (67) in U...). Kƒ/4
or 17th April, 1961 ra.cro), I cz nơi satisilod, aftor discussing the
problem with ... • vul de lânge, Assistant Li-cotor of Ubben "kivioco,
that the ally as.outlive naj/ Of uplcnanting these regulations will be
so tils cupartant to issue impo. t Divaneen os câ jrting the
sorti.doutes zogji tu by quž tien 4. This dqpart ent clready inawa
sioco03 un 2 to impo. tutiu, Cida sya tution (itualsve da nocivico)
lejul: tiuna iu skusen tik o Milou booá, culton anu pork including
offulo but I have no sceath due Anti- ing the other 1.000 covzod by the
inpa tou "unt cu ruunky OLĀ. DALA (duet of animal other than bʊu?,
mutton anu jorît, ak pouley) uta thesc regulatiübbə

'

4.

I un avstanu thật tử, vai ce Linco hao ditoussed tids (Ováln with 12.
Bouddly, Grown Cotncol, unu tho letto. Quidk., rod that neat os aincl
other than buod, nuttun and pack, (nu poulty could be kidu.cn in poofah
2 of the firut Schodulo to the proposed E-part.) on nu mayportubium
(uliccnstig) Hoyul, tiqus thich you che non going ŵ a. ot under the
present Übcâmnoë0, p. sundly belovo pist Merch 1969.

5.

I could have no objections to this, but vo ld it be neo cachy to inclu o
in the Logi, dution that I voulu miy iesno the Zopa. ¿ ca ticato a sirot
sibting the certificate required by the Ingoteu l'oct and poultry hul
tiang?

m

(D.G. Vestrson)

A

for Director of Vormereo and in ustry

وجيا

DJ the

0.0. Ikxi. C.3. (?)

Fin. D.U.".

3/7901/1/50

حسا

A

7915

18/12

From

G.F. 73A

30x100-7/61-23938

CON. DENTIAL

Legal Department.

Ref.

Tel. No. 95219

MEMO

CONFIDENTIAL

(Mr. Dawson)

To Coumissioner of Police..

..in...AGO. 8/1250/62.

Date 17th December, 1962.......

Your Ref..

in

dated.

Revision of Emergency Regulations

Further to our Conference dated 17.10.62., I would be grateful for
C.P.'s views on whether the Emergency (Arms and Ammunition Ordinance,
1933)(Amendmente) Regulations, 1952, can be revoked now or should be
incorporated into the permanent law.

2.

It will be noted that discharging a loaded firearm with intent to do
grevious bodily harm, etc., carries life imprison- ment under section 17
of cap1 212; and that the use of a fire- arm to resist arrest carries a
specific maximum penalty of 14 years under section 30 of cap. 238. It
seems to me clearly unjustifiable to have in peace time a maximum
sentence of life imprisonment for all offences under cap. 238, bearing
in mind the wide definition of 'arms', but the C.P. may wish to retain
it for certain offences.

3.

At the same Conference you undertook, I believe, to put in suggestions
for the incorporation of E.P.R.'s 25 and 26 into the Public Order
Ordinance, Cap. 245.

File

NFA

AIS

18/12

c.c. Hon. C.S. (Mr. Shephard)

/ap.

W/WDarioSun.

(W.S.W. Davidson)

Crown Counsel