immunity could be successfully claimed in court for evidence relating to JLG discussions although, as he has pointed out, an immunity is not the same as a right or privilege. Public interest immunity could be claimed for JLG documents and presumably for oral evidence relating to their contents. I am less clear as to the position on other oral evidence about JLG business. But given paragraph 10 of Annex II to the Joint Declaration I think the courts would hold that such evidence need not be given. Another question is whether HMG would have to claim public interest immunity on behalf of British JLG members. It may not be open to such members to claim it for themselves. Mr Findlay also considers the situation where Legco determines a matter of right or privilege differently from the way in which a court of law would determine that privilege. He considers that the witness or the Hong Kong Government would be successful in relying on judicial review of the Council's determination. The Crown Solicitor in his minute of 30 October has pointed out that decisions of the Governor-in-Council can certainly be reviewed and there is no reason to suppose that a decision of Legco would not equally be reviewable.
1.
I do not consider section 15 of the Ordinance (discussed by both Mr Findlay and UKREP JLG telno 512) to be of much relevance. I would conclude that in the case which relates to correspondence covered by section 14 (2) of the Ordinance, British Joint Liaison Group members do not have to give evidence. Insofar as they are asked to appear before Legco in respect of matters not covered by section 14 (2), it seems very likely that public interest immunity could be claimed for JLG documents and oral evidence. However, I think the public interest immunity point needs to be looked at in more detail if there is any real danger that Legco will call British JLG members. This is ultimately a matter of Hong Kong law. However, I could, if necessary, obtain guidance from Treasury solicitors who are the experts on public interest immunity as to how far it could be claimed by JLG members before Legco.
Shelagh Brooks
S Brooks