Joint Committee on Statutory Instruments Eighth Report


APPENDIX III


Memorandum by the Home Office


HONG KONG (EXTRADITION) ORDER 1997 (S.I. 1997/1178)

  The Committee has asked for a memorandum on the following point:

    Explain the effect on section 13 of the Extradition Act 1989 of article 5(c)'s making the Secretary of State's warrant for a person's return "effective . . . notwithstanding . . . section 13" (as amended by this Order), in particular its effect on his right to have the Secretary of State's decision judicially reviewed.

  2. Section 13 of the Extradition Act 1989, before its amendment by the above Order, made supplementary provision in respect of a return to foreign states. "Foreign state" is defined in section 3(2) of the 1989 Act as excluding inter alia Commonwealth countries and colonies. Hong Kong before 1 July 1997 was a colony and thus excluded from the definition of foreign state. Section 13, therefore, was of no application in respect of a return to Hong Kong. By virtue of paragraph 9 of the Schedule to the Order, section 13 will apply after 1 July 1997 where the Secretary of State makes an Order under section 12(1) for the return of a person to the Hong Kong Special Administrative Region in the same way as before that date it applied to foreign states.

  3. Article 5(c) of the Order is making provision in the case where a surrender warrant has been issued by the Secretary of State for the return of a person to Hong Kong, that is to say the warrant is issued, before 1 July 1997 but the return of that person is not effected until after that date. The purpose of article 5(c) is to make clear that such a warrant is effective notwithstanding the application of section 13 to surrender warrants signed after 1 July 1997 for the return of a person to the Hong Kong Special Administrative Region.

  4. Although, as noted above, section 13 of the 1989 Act does not apply in the case of a return to a Commonwealth country or colony, a person subject to an order or return to a Commonwealth country or colony has a right to seek a judicial review of that order. A person subject to an order made by the Secretary of State before 1 July 1997 for his return to Hong Kong is entitled to seek judicial review of that decision in the same way as he was entitled to seek a review prior to 1 July 1997. Article 5(c) has no effect on this position.

14th July 1997


 
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Prepared 19 September 1997