TNAG-2169-FCO40-3106-House-of-Commons-Foreign-Affairs-Committee-inquiry-into-Hong-1990 — Page 8

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I have now had an opportunity to read Mr Maude's evidence before the FAC on 11 July. At question 54 on page 10 there is the following exchange: -

"

[Mr Canavan]

but Article 22 of the Bill of Rights is a bit devious and, in fact, the official explanatory memorandum states that Article 22 of the Bill of Rights does not require the establishment of an elected Executive or Legislative Council. How would you reply to that criticism?"

(Mr Maude) "I do not know the exact answer but I suspect - and this is subject to confirmation - that that simply reflects the wording of the International Covenant."

(Mr McLaren) "That is right, yes.

"

Mr Maude completed this exchange by saying that it was his understanding, though he was not sure whether this precisely reflected it, though this could be checked, "that Article 22 of the Bill of Rights simply reflects Article 25 of the International Covenant".

2.

Mr Maude's and Mr McLaren's answers do not, in fact, reflect the true position. Article 21 of the Bill of Rights (it was Article 22 in the White Bill text) does indeed reflect Article 25 of the ICCPR, but Mr Canavan's question was directed to clause 13 of the Bill (the explanatory memorandum does no more than draw attention to clause 13) which says that Article 21 does not require the establishment of an elected Executive or Legislative Council in Hong Kong. There is nothing about that in the ICCPR. That exception comes from HMG's reservation upon ratification of the ICCPR to the effect that they "reserve the right not to apply [the relevant provision of Article 25 of the ICCPR] insofar as it may require the establishment of an elected Executive or Legislative Council in Hong Kong". Putting it shortly, the exception to which Mr Canavan referred is not in the ICCPR but is one of the reservations made by HMG to its application.

3PFAAP

3. It is, of course, perfectly legitimate in terms of the JD and the BL to carry this reservation forward. JD 156 refers to the provisions of the ICCPR "as applied to Hong Kong"; so does Article 39 of the Basic Law. "As applied" is taken on all sides as meaning subject to the reservations referred to above. You may, however, wish to consider whether the FAC should be informed of the correct position.

4. The only other matter of explanation of the BL which drew my attention in reading Mr Maude's evidence was as regards his answer to question 63 on page 12. In answer to a question from Mr Lawrence about Article 158 in which

Mr Lawrence referred to human rights aspects of the Basic Law and stated "It goes back to Peking for interpretation at the end of the day", Mr Maude said:-

5.

"It can do in some circumstances and subject to certain procedures which are set out, I think, in Article 158 of the Basic Law. But it is certainly not, I think, envisaged either by the Chinese and certainly not by Hong Kong that this would be a routine practice in the procedure.

The second sentence is certainly true, but the first does not tell the whole story. There are circumstances and there are procedures in which the courts of Hong Kong are required to seek the view of the Standing Committee of the NPC on the interpretation of the Basic Law. However, these procedures and circumstances do not affect the power of the Standing Committee, of its own motion, to interpret the Basic Law. Article 158 of the Basic Law is, so far as the Standing Committee is concerned, only a particular instance of the power of the Standing Committee under Article 67 of the PRC Constitution to interpret statutes. You may also wish to consider whether this point should be drawn to the attention of the FAC.

26 July 1990

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Paul Fifoot Legal Advisers

3PFAAP

CODE 18-77

Miss SF Bailey

Parliamentary Relations Unit

FILE

Reference.

FOREIGN AFFAIRS COMMITTEE: EVIDENCE SESSION ON 11 JULY

Co

1. This is a follow-up to my minute to you of 23 July. Just two more points:

Page 2, Question 4: Sir Percy Craddock should be spelt

with one 'd', ie Sir Percy Cradock.

Page 8, Question 33: Special Atonomous Area should read Special Administrative Region.

Please discount misleading correction in my earlier minute.

K. Sanders

KA M Saunders

Hong Kong Department

WH312

270 3544

24 July 1990

CC:

PS/Mr Maude

Mr McLaren

HKD

011/1

RECEIVED IN REGISTRY

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07 AUG 1990

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