all the documents enclosed with Macgregor's letter to Henry Steel were culled from the records of the Hong Kong Department of the Foreign and Commonwealth Office.
In my view, the correct position at law is that all the documents which Macgregor has identified are in the possession, custody or power of the Secretary of State for Foreign and Commonwealth Affairs. They can only be produced by him or, in practice, by an official of his Department nominated to attend Court in response to a subpoena duces tecum served upon him, which sufficiently identifies the documents of which production is sought. Thus, my understanding of the present position, with which Messrs. Oswald Hickson agree, is that their client is not obliged to disclose any of the documents on discovery because they are not now and never have been in Mr Blaker's possession.
At a later stage in these proceedings, it may be that a subpoena will be served on behalf of the Defendants, and at that stage, the Attorney General will wish to consider whether any of the documents, of which the subpoena demands production, properly falls within a class of documents which should not be produced on grounds of public interest immunity. As I have said, I do not think that we are concerned with this problem at the present time, but it may be helpful if I give you my preliminary view. It seems to me that the Secretary of State might properly be advised to make a claim in the public interest on one or more of the following grounds:-
(a)
That the subpoena specifies documents falling within a class which concerns relations or dealings between the Government of the United Kingdom and the Government of a territory outside the United Kingdom which forms part of Her Majesty's dominions. You may think that the following fall within this category
(i)
(ii)
(iii)
'Background note';
Minute dated 29th April 1980;
Telegram No. 365 dated 1st May 1980.
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