4Q
GR 400
CONFIDENTIAL·
DESKBY 2413OOZ BOTH
CONFIDENTIAL
HKK 613
RECEIVED IN REGTS MY,
2 4 JUN 1985
DESK OFFICER
FM HONG KONG 2411OOZ JUN 35
TO IMMEDIATE FCO
TELEGRAM NUMBER 1258 OF 24 JUNE
INDEX
INFO IMMEDIATE HONG KONG GOVERNMENT OFFICE LONDON
42
PA
Action, faken
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HONG KONG TELNO 1251: LEGISLATIVE COUNCIL (POWERS AND PRIVILEGEST BILL: CLAUSE 14(2).
1. FOLLOWING ARE OUR FURTHER COMMENTS ON CLAUSE 14(2):
(A) CLAUSE 14(2) IS IN A FORMAT THAT HAS TRADITIONALLY BEEN USED
IN COLONIES: THE AIM IS TO PREVENT LEGCO UNILATERALLY ORDERING DISCOVERY OF FILES CONTAINING WRITTEN COMMUNICATIONS (IN THE FORM OF MINUTES, MEMORANDA AND LETTERS ETC) ON THE ARMED FORCES, ON MATTERS AFFECTING THE SECURITY OF HONG KONG AND ON MATTERS
THAT FALL DIRECTLY UNDER THE RESPONSIBILITY OF HMG AS REGARDS HONG KONG.
(B) ON THIS VIEW THE DOMINANT WORD IS CORRESPONDENCE, WHICH IN
PRACTICE WOULD ALWAYS NEED TO BE DEALT WITH IN A MORE CAUTIOUS WAY THAN OTHER EVIDENCE, ORAL OR DOCUMENTARY. IT WAS THE ORIGINAL INTENTION OF THE BILL TO LIMIT THE GOVERNOR'S POWER OF NEGATIVE INTERVENTION UNDER CLAUSE 14(2) TO PROTECTING FILES ON DEFENCE AND SECURITY MATTERS.
(C) IT IS NOT ACCEPTED, BUT AT THE SAME TIME NOT EASILY REFUTED,
THAT THE REFERENCE TO HMG'S RESPONSIBILITIES MUST BE UNDERSTOOD IN THE BILL IN THE LARGER SENSE THAT SEEMS TO HAVE BEEN INTENDED
IN THE JOINT DECLARATION. THE LEGAL ADVICE HERE IS THAT THE BILL IS ONLY CONCERNED AS REGARDS HONG KONG WITH ASPECTS
OF GOVERNMENTAL RESPONSIBILITY WHERE THE HONG KONG GOVERNMENT IS NOT COMPETENT TO ACT WITHOUT REFERENCE TO THE SECRETARY OF STATE. IT DOES NOT WORK THE OTHER WAY.
(D) THE POINT THAT HAS ARISEN IS NOT A DRAFTING POINT AND ANY VERBAL CHANGE IS NOT THOUGHT LIKELY TO CALM THE EXISTING UNEASE. IT IS APPRECIATED THAT THE LATEST AMENDMENT, NAMELY, TO ADD THE WORDS WHETHER RELATING TO HONG KONG OR ELSEWHERE'' DOES NOT STRICTLY SPEAKING TOUCH ON THE SAME POINT, ALLOWING ALSO FOR THE POSSIBILITY THAT THERE MAY NOT BE A LARGE VOLUME OF CORRESPONDENCE DEALING WITH ELSEWHERE'' WHICH COULD BE PRODUCED IN EVIDENCE. BUT WITH THE EXISTING REFERENCE TO RESPONSIBILITIES UNDER STRONG CRITICISM AND FACED WITH THE OBVIOUS NECESSITY TO SPEAK ON THE POINT IF THE LATEST REQUESTED AMENDMENT IS TO GO AHEAD AT THE COMMITTEE STAGE, WE WOULD BE GRATEFUL IF YOU CAN SUPPLY SUPPORTING ARGUMENTS ON THE INTERPRETATION AND APPLICATION OF CLAUSE 14(2) AS IT NOW STANDS, AND ON THE NEED FOR THE LATEST REQUESTED AMENDMENTS AS WELL.
CONFIDENTIAL