TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 92

PF

CONFIDENTIAL

Foreign and Commonwealth Office

London SW1A 2AH

1. Ms Major (133

2. Mr Fifoot

ताड 29/5

Telephone 071-270 3381

Your reference AGC ADV 638 /00C IX

Our reference

Mr Frank Stock

Solicitor-General Attorney-General's Chambers 4/F High Block

Queensway Government Offices 66 Queensway, Hong Kong

Dear Frank

HKD241

Date

HONG KONG BILL OF RIGHTS

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-4 JUN 1990

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TOMAVG

24 May 1990

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2113

125

1.

Thank you for our letter of 23 May and the attached brief on persons bound by the Bill of Rights. I am attaching to this letter the General comments of the UN Human Rights Committee up to April 1989 (27 pages) and of November 1989 (4 pages) which you asked me to send you.

2. We are about to send you a telegram in response to your telno 1583 and a copy (by fax) of a long minute from Paul Fifoot to Pamela Major. I think you will find that these cover much of the ground set out in your brief. For what they are worth, my own hastily put-together thoughts on the specific questions you have raised in your letter are as follows:

The effect of clause 7 of the White Bill

3. It seems to me, at first glance, that the following are the Articles which could be violated by private persons: 2, 3, 4, 5, 8, 14 15, 16, 17, 18(?), 19, 20, 21, 23, 24. To answer your specific questions:

(a) It must surely depend on the nature of the employment and the reason for enforcing such a prohibition. If the employee were a civil servant, enforcement might be justifiable under Article 16 (3)(a) for the respect of the rights or reputation of the goverment. The right of the government to confidentiality would be covered by this defence.

It is hard to imagine a private employer including such a prohibition in a contract; if he could show that it is necessary for the protection of his business interests it might likewise be justifiable under Article 16 (3)(a). If the employer's reason for wishing to inhibit criticism of the Government were purely political and unrelated to the employment, I imagine that the prohibition might well fall foul of Article 16.

(b) Article 11 imposes duties on the courts and the legal system, which must apply irrespective of whether a prosecution

CONFIDENTIAL