CONFIDENTIAL
Remaining Questions
4.
We can be pleased with the decisions at paragraphs 1 (B), (E), (F), (H) and (I). I can form no opinion on paragraph 1(G) but I assume that you will be satisfied with that.
Yes..
5. There remains, I think, the Chinese sensitivity point as regards public emergencies in Clause 5, though for our part we could live with the new drafting of that Clause. The Chinese sensitivity point on Clause 2(3) remains, but we might wait for ExCo's discussion next week (see paragraph 2(A) of TUR).
6. I remain unhappy about Clause 6 where ExCo has agreed to the HKG's recommendation (paragraph 1(D)). The parenthesis in Clause 6(1) which gave me concern has been moved and that perhaps improves that sub-section, but sub-section (2) of the Clause remains, which I fear may give the courts some problems in the future as it can be read as extending the jurisdiction of the courts even though the intent is otherwise. I am also concerned that there is no provision which would preclude the court from having such powers that "existing remedies may be used in new ways or developed" (paragraph 7 of the ExCo Memorandum) in cases where adequate means of redress are available under other law. This is of particular concern where rights under the BOR may be pursued as between private persons, eg if there is an adequate remedy in trespass or defamation there should be no need for the courts to adopt or develop other remedies merely because the case is brought for a "breach of" the BOR rather than under the common law or the relevant other ordinance. However, we argued the case for such a provision with Hong Kong over the past couple of months but I see little prospect of them accepting this argument at this stage.
7.
In paragraph 2 (D) of TUR it appears that ExCo will further consider substituting "citizen" in Article 21 by "a person with right of abode in Hong Kong". This is a tricky point. It really depends upon what one can get away with by way of restrictions under the phrase "and without unresasonable restrictions" in Article 21 itself. We must wait to see what proposals are made.
8.
Paragraph 3 of TUR deals with a new point. seems acceptable.
The proposal
Letters Patent
You will have seen Mr Dykes's letter of 9 July to Ms Barrett. I want to think further about this and will minute separately.
9.
3 PFAAK
CONFIDENTIAL
Paul Fifoot
Legal Advisers