CONFIDENTIAL
HKC241/5
44
004006 MDHOAN 3075
CONFIDENTIAL
FM FCO
TO DESKBY 09010OZ HONG KONG
TELNO 876
OF 081745Z MAY 91
INFO IMMEDIATE PEKING, UKREP JLG HONG KONG
(42)
YOUR TELNO 1424: BILL OF RIGHTS: INTERCITIZEN RIGHTS
la forals.
1. OUR LEGAL ADVISERS PREFER THE SUBSTITUTION OF ''PUBLIC AUTHORITIES'' FOR ''PUBLIC BODIES' WHICH, BEING TIED TO AN EXHAUSTIVE DEFINITION, WAS TOO INFLEXIBLE. SINCE ''PUBLIC AUTHORITIES'' IS NOT DEFINED, IT HAS THE ADVANTAGE OF BEING CAPABLE OF DEVELOPMENT BY THE COURTS TO COVER NEW KINDS OF AUTHORITIES. THIS FLEXIBILITY WILL BE OPEN TO THE CRITICISM THAT IT IS UNCERTAIN. IT IS PROBABLY JUST AS UNCERTAIN AS THE DEFINITION IN (I) (C) OF YOUR TELNO 1379, SO THERE IS NO ADVANTAGE IN TERMS OF LEGAL CERTAINTY IN DELETING (I) (C).
2.
THE REAL DIFFERENCE BETWEEN ''PUBLIC AUTHORITIES'' AND THE (I) (C) FORMULA IS THAT THE FORMER IS LIKELY TO BE CONSTRUED MORE NARROWLY. IT IS LESS LIKELY TO BE INTERPRETED AS COVERING BODIES WHICH ARE ESSENTIALLY PRIVATE IN CHARACTER WHEN THEY ARE EXERCISING PUBLIC FUNCTIONS (EG THE STOCK EXCHANGE, JOCKEY CLUB, ETC). FOR EXAMPLE, WOULD BODIES SUCH AS UNIVERSITIES, ESPECIALLY WHEN ACTING IN THEIR SCHOOLS EXAMINING CAPACITIES BE COVERED BY THE NEW DEFINITION? THEY WOULD ALMOST CERTAINLY HAVE BEEN COVERED BY (I) (C).
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3. WE WOULD SUGGEST THAT YOU KEEP THE NEW (I) (A) AND (B) IN, BUT PUT BACK (I)(C) FROM YOUR TELNO 1379. THE THREE CLAUSES TOGETHER WOULD BE ROUGHLY IN ACCORDANCE WITH RECENT CASE LAW FROM THE ECJ DEFINING THE MEANING OF 'STATE' AND, WE BELIEVE, THE CASE LAW OF OTHER COMMON LAW JURISDICTIONS WHERE FUNDAMENTAL RIGHTS PROVISIONS BIND ''THE STATE''.
4.
WE WONDER WHY (I) (B) OMITS THE WORDS ''OR PURPORTING TO ACT' WHICH APPEARED IN CLAUSE 7 OF THE BLUE BILL, AND WHY 7(C) FROM THE BLUE BILL HAS BEEN OMITTED.
5. WITH REFERENCE TO THE QUESTIONS IN PARA 4 OF MY TELNO 871, WE ASSUME THAT THOSE BODIES ARE MORE LIKELY TO BE COVERED BY THE NEW (I) (A). NEVERTHELESS WE WOULD LIKE TO KNOW WHETHER YOU
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