CONFIDENTIAL
105.<5
MOLIAN 6471
5.
THERE APPEARS NO NEED TO STATE THIS RIGHT IN BILATERAL AGREE- MENTS. ADVERTISEMENT IN AN AGREEMENT OF THIS RIGHT MIGHT OVER ENCOURAGE THE CPG TO UTILISE IT. NEVERTHELESS ITS EXISTENCE WOULD HAVE TO BE EXPLAINED TO NEGOTIATING PARTNERS.
REQUEST BY HONG KONG
6. WE MUST GO TO EXCO TO OBTAIN APPROVAL FOR THE RIGHT TO INSTRUCT ON REQUESTS BY HONG KONG. WE BELIEVE WE MUST ACCEPT THAT ALL FORMAL REQUESTS SHOULD BE ROUTED THROUGH CPG DIPLOMATIC CHANNELS ABROAD, BUT WE DO NOT WANT THE UNCERTAINTY OF BLOCKING ACTION BY SUCH DISPARATE AGENCIES WHICH IS WHAT THE CHINESE SIDE MIGHT WELL HAVE IN MIND AND WHICH MIGHT ACCOUNT FOR THEIR SILENCE ON THIS ASPECT OF THE SUBJECT. IN GOING TO EXCO, WE WOULD SAY THAT IT WOULD BE VERY DIFFICULT TO ARGUE AGAINST THE RIGHT TO INSTRUCT, ALTHOUGH THERE ARE DIFFERENCES IN THE TWO SITUATIONS. IN PARTICULAR, REQUESTS BY HONG KONG ARE AN EXTENSION OF THE PROSECUTING PROCESS AND ARE NOT SUBJECT TO THE CONSTRAINTS OF PUBLIC KNOWLEDGE, POSSIBLE BREACH OF TREATY, AND PRIOR VETTING BY THE COURTS. NEVERTHELESS, THE RIGHT TO INSTRUCT MUST BE A LOGICAL COROLLARY OF GUARDING CENTRAL INTERESTS, AND WE WOULD PROPOSE TO TAKE THE INITIATIVE WITH THE CHINESE RATHER THAN WAIT TO SEE WHAT THEY HAVE IN MIND.
LEGISLATION
7.
THE MOST DIFFICULT QUESTION HAS BEEN THE REFLECTION OF CPG INVOLVEMENT IN LEGISLATION. IT IS CLEAR, AND WE HAVE SO TOLD THE CHINESE, THAT LEGISLATION SHOULD PROVIDE THAT THE DECISION OF THE CE WOULD NOT BE UNLAWFUL BY VIRTUE OF THE MERE FACT THAT THE CE HAD FOLLOWED INSTRUCTIONS.
8. WE BELIEVE HOWEVER THAT IT IS IMPORTANT THAT, THAT PROVISION ASIDE, THE RIGHT TO CHALLENGE IN THE COURTS THE FINAL DECISION SHOULD BE RETAINED EVEN IN CASES OF A DECISION TAKEN UNDER
INSTRUCTION.
THIS WOULD MEAN THAT AN ORDER FOLLOWING INSTRUCTIONS COULD STILL BE CHALLENGED ON SUCH BASES AS PREMATURE SURRENDER, POLITICAL OFFENCE, FAILURE TO CONSIDER FRESH EVIDENCE.
9. THERE WOULD HAVE TO BE AGREED STEPS TO PROVIDE A FRAMEWORK WITHIN
WHICH INSTRUCTIONS MAY BE GIVEN. WE HAVE PREVIOUSLY CALLED THESE
GUIDELINES. WE BELIEVE THAT THESE SHOULD BE LEFT AS ADMINSITRATIVE
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