TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 108

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reflects Article 4 of the Covenant. There are two difficulties:

(a) OMELCO are concerned about the fact that the Bill is not

explicit about which authority in which circumstances declares a state of emergency. They think the Bill would give the CPG wider

powers than those envisaged by Article 18 of the Basic Law.

(b) The reference to "Government" in Clause 5.2(a) can only mean the sovereign government. The Chinese might argue that this Clause was seeking to bind the central authorities on matters outside the autonomy of the SAR which will give them an excuse to

terminate the Bill under Article 160 of the Basic Law.

10. We therefore propose an alternative solution whereby a reference is made in Clause 4(1) to Article 4 of the Covenant, but

without duplicating its wording in the Bill.

Procedural Provisions Relating to the Crown

11. Hong Kong have asked whether existing law whereby injunctions and interim declarations cannot issue against the Crown could be

seen as inconsistent with Article 2.3(a) of the Covenant (which

obliges parties to provide an effective remedy for persons whose

rights have been violated). In our view, it does not follow that

the absence of power to injunct the Crown means there is no

effective remedy and we are not aware of any cases in which this issue has been raised under the European Convention on Human Rights.

I therefore propose we advise Hong Kong that the risk of challenge in the courts is not high, and that it is not necessary to change the law in this respect in order to implement the ICCPR.

Third Party Rights

12. The Bill is currently drafted in such a way that it creates

obligations for private persons as well as public authorities and

that a breach of those obligations is actionable as a tort. There

is nothing exceptional in making provision for rights of actions against private persons in a Bill of Rights (we have done so in all our Dependent Territories' Bills of Rights). It is, however,

TOMAVB (5)

CONFIDENTIAL