TNAG-1183-FCO40-1485-Resettlement-of-Vietnamese-refugees-from-Hong-Kong-into-the--1982 — Page 43

CODE 18,77

Mr Burkows

7.B. 30/9

Mr. Hoare HK+GD

Reference........

CONFIDENTIAL

HONG KONG: CLOSED CAMPS FOR VIETNAMESE REFUGEES

224

See

225

228

Eee HKK 243/36

Hkk243/1

I agree

1. Please refer to your minute of 29′ September. generally with your remarks and that Articles 7, 10 and 17 of the Covenant are particularly in point.

2. I have the following additional points:

No Taglio

AF11110

(a) It is quite possible that we would be found to be in breach of a whole series of articles of the Covenant as a result of the operation of these Rules which are, of course, the kind of rules which govern the behaviour of occupants of a conventional penal institution. For example, it seems quite likely to me that breaches of Articles 18, 19 and 22 will occur.

(b) You have mentioned Article 17 of the Covenant. On the basis of our ECHR experience, I would say that Rule 26 is clearly inconsistent with Article 17(1) concerning the freedom from unlawful interference with corres- pondence. The problem arises from the unfettered discretion given to the Superintendent to regulate the sending and receiving of letters. In order to comply with Article 17(1), the rules would have to grant a right to detainees to send and receive a (fairly generous) number of letters, subject only to reasonable inspection for security reasons. In this connection, Rule 26(3) causes problems about the privacy granted to a detainee's correspondence under Article 17(1). There is currently a case before the European Court of Human Rights (Silver and Others v UK) concerning the compatibility of our prison rules on censorship of correspondence etc. with Article 8 of the European Convention on Human Rights which is drafted in a similar manner to Article 17 of the Covenant. Judgment in Silver is expected towards the end of this year or the beginning of next.

(c) Rules 32 to 37 could, as you have said, give rise to

breaches of Articles 7, 10 and 17 of the Covenant. In addition, if a detainee was killed as a result of the use of firearms under Rule 37 (particularly if it was under Rule 37(2)) there well may be a breach of Article 6(1) of the Covenant. We have a current case before the European Commission of Human Rights (Farrell v UK) which raises a very similar point. In that case it is alleged that the shooting and killing of a man (by a British soldier in Northern Ireland) who was suspected of having been about to rob a bank and who was attempt- ing to escape, is in breach of Article 2 of the European Convention on Human Rights. We shall not know the result of this case for some considerable time. But it raises serious issues and is very difficult for

us.

CONFIDENTIAL

/(a) Mr Hoare,