TNAG-1101-FCO40-1351-Legislation-on-homosexuality-in-Hong-Kong-including--Report--1981 — Page 442

WRR 241/22

CONFIDENTIAL

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5 NOV 1921

DESK OF FILES

Mr Rushford, Deputy Legal Adviser

CAE

No

2510

Pas 4/12

See

49

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attached

EUROPEAN COURT OF HUMAN RIGHTS: DECISION IN THE DUDGEON CASE

47

1. In your minute of 3 November to David Gladstone (who is away)

you asked for his views on the repercussions in dependent territories (4

of the Court's judgement in the Dudgeon case.

2. I agree that Mr Jarrett need receive little more than a bare acknowledgement of his letter explaining that the Convention has not been extended to Hong Kong.

3. As far as other dependent territories to which the Convention has been extended are concerned, I believe it would be worthwhile bringing this matter to their attention (as opposed to bringing pressure to bear on them). We have to bear in mind that HMG has extended the Convention to them on their behalf, and any complaints will be brought against HMG. Any cases brought by citizens of dependent territories under the Convention will lead to criticism of the UK and embarrassment for HMG.

4. A similar situation arose over the Tyrer case, when the UK bore the brunt of criticism which developed over the retention of corporal punishment in the Isle of Man. As a result of the Court's findings in that case, dependent territories were consulted about any action they proposed to take. I enclose a copy of a minute dated

22 November 1978 from Mr McLaren of HKGD to Mr Stratton, although

I have no copies of later submissions referred to in the last sentence. Perhaps we could follow a similar pattern on this occasion?

5.

Although on a strict interpretation of the Convention, after the finding by the Court dependent territories should bring their law into line with the UK, it might be possible to argue that 'local requirements' necessitate the retention of laws prohibiting homo- sexuality under Article 63(3).

6. With reference to para 2 of Mr Friar's minute, Articles 25 and 46 of the Convention were also extended to Anguilla and the Bailiwick of Guernsey for five years from 14 January this year. This was the first occasion on which Anguilla accepted the optional Articles of the Convention.

7. As to juveniles (para 4 of your minute), you will be aware that in its judgement on the Dudgeon case, the Court made clear the need for young people to be protected and emphasised the right of national governments to fix the age of legal consent.

18 November 1981

cc. Mr Friar, HKGD

Per

PW M Vereker

Western European Department W62A 233 4759

Mr Edwards, LA

CONFIDENTIAL