TNAG-1334-FCO40-1766-Future-of-Hong-Kong-legislation-1984 — Page 157

CODE 18-77

Mr F Burrows Legal Counsellor

HONG KONG BILL

1.

HKK 040/53.

RECEIVED 2 MEĢISTRY

WH 217 NOV 1934

DESK OFFICER INDEX

PA

W

C

Reference...

Mr. Darwin

M. Galsworthy

(13

Mr. Powell

Мно

Radice.

7.B. 16/11

Paragraph 1 of the Schedule to the draft Bill looks broadly on the right lines. My main problem is with the words "while in the United Kingdom". The inclusion of these words might have the effect of excluding the normal rule that immunity with respect to acts performed in the exercise of official functions continues even after the person has left the host country. If these words are retained, it is not clear to me that Article 39 (2) of the Vienna Convention on Diplomatic rules, which is scheduled to the Diplomatic Privileges Act 1964, would have its full effect. If these words were omitted, Article 39 would probably automatically ensure that the Chinese members of the Group only enjoyed the full range of privileges and immunities from the time they arrive in the United Kingdom to the time they leave.

2.

Lag

The words "as those conferred on diplomatic agents" may be too narrow, particularly when compared with paragraph 9 of Schedule 1 to the International Organisations Act 1968, which refers to "the like immunity .. inviolability ... as are accorded to or in respect of the head of a diplomatic mission". (The reference to the head of a diplomatic mission is unimportant.) I presume that the draftsman included the words "in respect of" because certain provisions of the Vienna Convention are drafted in terms of conferring inviolability upon the residents or the papers, baggage etc of a diplomatic agent rather than on the diplomatic agent himself. I would see marginal advantage, for the sake of clarity, in using a formula closer to paragraph 9.

3. The effect of the draft Bill is to exclude certain ancillary provisions of the 1964 Act. In particular, I think consideration should be given to include a provision corresponding to section 4 of the 1964 Act which provides for a conclusive certificate of the Secretary of State on any fact relevant to privileges and immunities.

It does not seem to me that diplomatic privileges are consequential on the provisions of Clause 1, as is stated in Clause.

4.

2(2).

5. I note that the draftsman has used the word "nominated" in paragraph 1, whereas the Declaration uses "designated".

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