CONFIDENTIAL
11. Political sensitivities
(i) The civil/criminal distinction.
Clearly any cooperation with China on criminal matters (such as extradition or MLA) is out of the question for the time being. Discussion on civil matters needs to be handled carefully:
(a) to avoid straying unwittingly into the area of
criminal law or areas of civil law where criminal-type penalties may be imposed; and
(b)
to avoid giving the impression to the public that any criminal cooperation is being contemplated, as the civil/criminal distinction may not be fully appreciated by non-lawyers. (Indeed, such confusion might have been the reason for DPA's reaction to Mr Keller's paper, especially since the two subjects have been referred to together in our exchange of telegrams.)
(ii) The Guangdong fiasco in the mid-eighties.
Prior to the signing of the 1988 agreement, a provisional agreement had been signed by the then Hong Kong Chief Justice without authority and apparently without reading the papers! This resulted in red faces and bad press, and may account for the reluctance of those involved to re-open the subject now. However, Mr Betts (the person most centrally concerned) told me that he would be content to see more agreements developed, provided that in future political negotiators are in charge rather than judges.
12.
Recommendation
I propose that Michael Palmer (who has replaced Mr Keller as Director of the China Law Unit) be encouraged to:
(a)
(b)
prepare a paper on PRC civil procedure, identifying the areas in which cooperation might usefully be developed and pitfalls to be avoided;
in the meantime, keep open the dialogue with the SPC begun by Mr Keller and develop arrangements for information exchange.
If you are content, I will write to the Solicitor General along these lines. I believe that the political lines are now cleared for progress to be made but you might like to check this yourself during your visit.
Will Banct
Jill Barrett
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ALLAAD
CONFIDENTIAL