CODE 18-77
AWO Ltd. 7/84
Mr Hicks, Consular Department
CC:
Reference Cin 3837 (1986 COPY TAKEN FOR GK 383/11182
Mr Barton, HKD
COLONIAL PRISONERS REMOVAL ACT .1884
as
1.
I agree that we are discussing procedures and that it is up to HKD to make the final decision to what procedure is to be adopted. The procedure seems to contain two suggested by Hong Kong however undesirable features, namely:
i. HMG have to make the first formal approach, and
ii.
there is no prior informal procedure which would give some indication as to whether the two Governments will be willing to agree to the removal.
The procedure suggested by Mr Hill does not suffer from these defects, and if Hong Kong Department agreed that for policy reasons it would therefore be preferable to insist on this procedure there would certainly be no objection on legal grounds. Indeed, steps (4) − (7) seem to be required by the terms of the 1884 Act and the delegated legislation made under that Act.
2.
Hong Kong point to section 5 of the 1884 Act in support of their claim that HMG must initiate the removal procedure. I do not read this section as giving such support; the position is stated clearly and, I believe, accurately, in the second paragraph of the letter from MOD of 5 September 1985. The Act is neutral as to who should start the procedure, but it seems to me that it is clearly undesirable on policy grounds that
should be in we
we a position where have to make the first request and risk Hong Kong not accepting it.
3.
Hong Kong are not willing to proceed on a case-by-case basis as they say (6th paragraph of their letter of 31 January) that the Governor has directed that a suitable procedure should b sorted out. If they do want such a procedure it will have to be one which is satisfactory to the UK.
Ordinance.
as а
4. As for the statutory basis for future transfers, if the
in 1884 Act is to be repealed it would need to be replaced, respect of each Dependent Territory, with the provisions of the Repatriation of Prisoners Act 1984, either through an Order-in-Council extending the 1984 Act, or through a local
there would also need to be, Furthermore, second step, an arrangement between the UK and each Dependent Territory on prisoner repatriation; the 1984 Act, unlike the 1884 Act, does not in itself provide for the transfer of prisoners, but instead gives authority for the implementing of international arrangements. One possibility would be for a separate bilateral between the UK and Dependent Territory; another possibility would be for the Dependent Territory to accept the Commonwealth Scheme.
/5.