CODE 18-77
Mr Stone
CONFIDENTIAL
HKB 440 / 1
3
Reference.
HONG KONG AND THE OFFICIAL SECRETS ACT (OSA)
1.
2.
Please refer to your minute of 22 February to Ms Brooks.
I think the Chinese are likely to be suspicious about this change but, for the reasons Hong Kong give, we should go ahead as they propose. I have, however, the following comments on the ExCo paper:
(a) Paragraph 13 I am not sure why so much prominence is given to this point. Compatibility with the ICCPR seems to be a secondary reason for replacing section 2 of the OFA 1911. I assume that the Order-in-Council applying the 1989 Act will at the same time repeal Section 2 (I should be grateful for Ms Brooks' advice), so is there any need to stress the repeal under the Bill of Rights? My concern is that the last thing we want the Chinese or anyone else to think is that we are taking this measure primarily in the context of the review of laws for Bill of Rights purposes.
(b) Paragraphs 17-18: it is not clear whether Hong Kong envisage briefing the Chinese or whether the responses here are intended for use if the Chinese complain. Could we clarify with Hong Kong? If they think a complaint likely it would clearly make sense to inform the Chinese in advance (eg through a JLG lunch). We should of course need to make clear to the Chinese that we were briefing them strictly for information only and that the decision was not one with post-1997 implications.
(c) Paragraph 18 : our main argument to the Chinese should be that we want Hong Kong law to reflect latest developments in UK law on this subject. I think it would be unnecessary and counter-productive to deploy the last sentence; the Chinese might well respond that post-1997 secrecy laws are likewise none of our business and that they will draft them without consultation with us. I am content with the rest of the points though it might be worth adding after "an appropriate time", "and in accordance with the principles for consultation over localisation and adaptation of laws,"
22 February 1991
cc Ms Brooks, Legal Adviser
Andreja
PA Major (Ms)
NESAKL