TNAG-1281-FCO40-1632-Chinese-visa-office-in-Hong-Kong-1983 — Page 39

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RECEIVED IN REGISTRY 2 5 NOV 1983

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REGISTRY

Action Taken

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FM HONG KONG 240935Z NOV 83

TOP COPY.

INDEX

TO PRIORITY FCO

TELEGRAM 1819 OF 24 NOVEMBER 1983

INFO PRIORITY PEKING

PEKING TELS NOS 1033, 1034 AND YOUR TELS NOS 717 TO PEKING AND 1114 TO HONG KONG: CHINESE VISA OFFICE

97

1. WE AGREE THAT IT WOULD HN PRINCIPLE BE SIMPLER TO LEGISLATE IN THE MANNER PROPOSED IN PARA 6 OF FCO TELNO 1114 TO HONG KONG. A BILL ON THESE LINES WOULD HAVE TO MAKE IT CLEAR THAT THE CONSULAR RELATIONS ORDINANCE (CAP 259) DID NOT APPLY BECAUSE THE VISA OFFICE WAS NOT A CONSULATE. IN THE LIGHT OF PARA 3 OF PEKING TELNO 1033, THE CHINESE SEEM UNLIKELY TO OBJECT TO THIS.

2. WE NEED TO DECIDE WHETHER A SELF CONTAINED BILL SHOULD ADOPT THE LANGUAGE OF THE VIENNA CONVENTION, WHICH IS DIPLOMATIC RATHER THAN LEGAL. A SELF CONTAINED BILL DRAFTED IN ACCEPTABLY PRECISE LEGAL LANGUAGE WOULD HAVE THE DRAWBACK THAT THE CHINESE MIGHT INTERPRET THE TIGHTER LEGAL LANGUAGE AS IMPLYING THAT WE WERE SEEKING TO GRANT A LESSER DEGREE OF PRIVILEGE AND IMMUNITY THAN IS AVAILABLE TO CONSULATES UNDER CAP 259.

3. WE THEREFORE SUGGEST A COMPROMISE, WHICH IS TO PLACE THE AGREED PRIVILEGES AND IMMUNITIES IN A SCHEDULE TO THE BILL. THE SCHEDULE COULD BE BASED ON THE MEMORANDUM OF UNDERSTANDING WITH THE CHINESE, MODIFIED AS NECESSARY TO MAKE IT ACCEPTABLE FOR INCORPORATION INTO LEGISLATION. THIS WOULD HAVE THE ADVANTAGE OF MAKING THE VISA OFFICE BILL LOOK VERY LIKE CAP 259, REDUCING THE RISK THAT THE COURTS, IN THE UNLIKELY EVENT OF THEIR BE ING CALLED UPON TO INTERPRET THE VISA OFFICE LEGISLATION, WOULD INTERPRET IT IN A DIFFERENT WAY FROM CAP 259 AND THE VIENNA CONVENTION.

4. WE DO NOT (NOT) THEREFORE PROPOSE TO RESPOND IN DETAIL TO THE COMMENTS IN YOUR TELNO 1114. THE OUTLINE OF THE BILL IN HONG KONG TELNO 1503 WAS PREPARED SOME TIME AGO. IT WAS NOT OUR INTENTION TO UP-DATE IT WITH EACH NEW ROUND OF DISCUSSIONS ON THE MEMORANDUM, BUT TO PRODUCE A REVISED DRAFT ONLY WHEN ALL POINTS IN THE MEMORANDUM HAD BEEN AGREED IN PRINCIPLE.

5. OUR COMMENTS ON THE LATEST VERSION OF THE MEMORANDUM ARE AS FOLLOWS:

PARA 1(3): WE TO AGREE WITH GALSWORTHY'S COMMENTS AND PREFER HIS SUGGESTED TEXT. ANY REFERENCE TO QUOTE PERSONAL INVIOLABILITY UNQUOTE WOULD IN ANY CASE BE DEFINED IN THE LEGISLATION AS BEING LIMITED TO FREEDOM FROM ARREST OR DETENTION PENDING TRIAL.

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(85)

/ PARA 1(4):

(103)

(96),