CONFIDENTIAL
FM FCO
TO DESKBY 01080OZ HONG KONG
TELNO 3146
OF 30154OZ NOVEMBER 87
고
HeeLD 301|l
CONFIDENTIAL
- 2 DEC 1997
289
01000T
MDHOAN 4006
INDEX
PA
28
TOP COPY Q DIST ?
YOUR TELNOS 4374 AND 4465: FILM CENSORSHIP
1.
WE HAVE CONSULTED LEGAL ADVISERS AND SET OUT THEIR
COMMENTS IN PARAS 2-10 BELOW. WE AGREE THAT IN YOUR MEETING WITH THE AD HOC LEGCO GROUP ON 5 DECEMBER YOU CAN REFER TO YOUR VIEWS
EXPRESSED TO BE QUOTE AFTER CONSULTING THE FCO UNQUOTE.
WE WOULD BE GRATEFUL TO SEE
IN DRAFT.
ANY MEMORANDUM PRODUCED ON THAT BASIS
IN ADDITION TO THE POINTS RAISED EARLIER BY OTHERS,
LESTER'S OPINION ASSERTS:
MR
2.
A)
B).
C)
3.
THAT THE RIGHT TO FREEDOM OF EXPRESSION IS NOT ADEQUATELY
SECURE WITH EFFECTIVE REMEDIES (PARA 1(A), AND IN THIS RESPECT THERE IS A FAILURE TO COMPLY WITH ART 2.2 AND 2.3
A AND B (THE SECOND PARA 6-PARA 9):
DISCRETIONARY
THAT THE MERE EXISTENCE OF THE CENSOR'S
POWER QUOTE CHILLS UNQUOTE THE RIGHT OF FREE EXPRESSION AND THEREFORE, EVEN IN THE ABSENCE OF THE EXERCISE OF THAT POWER IN A PARTICULAR CASE, THERE IS A VIOLATION OF ART. 19.2 (PARAS 1(C) AND 18):
THAT, WERE THE POWER TO BE EXERCISED AND CHALLENGED, THE
UNITED KINGDOM WOULD NOT BE ABLE TO SATISFY THE
REQUIREMENT THAT THE RESTRICTION WAS QUOTE PROVIDED BY
LAW UNQUOTE (PARAS 11 TO 13).
THE ASSERTION AT PARA 2(A) CHALLENGES THE UK'S POSITION
THAT IT IS NOT NECESSARY TO ADOPT SPECIFIC PROVISIONS TO GIVE
EFFECT TO THE ICCPR (OR THE EUROPEAN CONVENTION ON HUMAN RIGHTS)
SO LONG AS DOMESTIC LAW GUARANTEES THE RELEVANT RIGHTS AND
FREEDOMS. THAT IS A DEFENSIBLE POSITION HAVING REGARD TO ART.
2.2 OF THE ICCPR WHICH PROVIDES QUOTE WHERE NOT ALREADY PROVIDED FOR BY EXISTING LEGISLATIVE OR OTHER MEASURES, EACH STATE PARTY
UNDERTAKES... TO ADOPT LEGISLATIVE OR OTHER MEASURES AS MAY
BE NECESSARY TO GIVE EFFECT TO THE RIGHTS RECOGNISED IN THE
PRESENT COVENANT UNQUOTE. THE UK TAKE THE VIEW THAT THE COMMON
LAW IS INCLUDED IN QUOTE EXISTING
OTHER MEASURES UNQUOTE AND
THIS IS SUPPORTED BY THE ORGANS RESPONSIBLE FOR THE SUPERVISION OF THE OBSERVANCE OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS
WHICH HAVE HELD THAT THE OBLIGATIONS OF A STATE TO SECURE HUMAN
...
...
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CONFIDENTIAL