TNAG-2176-FCO40-3113-Hong-Kong-Bill-of-Rights-1990 — Page 188

CONFIDENTIAL

HKD241

STRY

23 JUL 1990

Mr Fifoot will

now mount firmer or

ISTRY on Taken

the Bill as

by Exco.

approved

for for 1877. да ви

From:

Paul Fifoot

Legal Advisers

Date: 11 July 1990

CC Mr McLaren

Mr Burns

Mr Paul, HKD Ms Barrett, o/r

Ms

Major

HKD

221

HONG KONG TELNO 2136: BILL OF RIGHTS

1. I have now had an opportunity of looking through the final version of the ExCo Memorandum with the Bill attached. I think the best way to deal with this material is to consider first the two principal issues which we raised with Hong Kong in our telegrams numbers 1260 and 1286 and then deal with the remaining points.

Clauses 7(3) and 14

www

202

218

2. Paragraph 1(A) records ExCo's agreement with the freeze period (Clause 14 the reference in TUR to Clause 1 has been overtaken by the introduction into the latest draft Bill of Clause 14). However, paragraphs 2 (B) and (C) of TUR show that ExCo is considering extending the deferment of individual obligations to Articles 16 (freedom of information) and 22 (discrimination), and also is looking at the possibility of defering the obligation to Article 14

(privacy) as regards the Government and public authorities. This really does very substantially increase the concern we have expressed as regards the inability of Hong Kong to enact a Bill of Rights that is presently effective, and if these hesitations in ExCo prevail they will provoke that comment set out in paragraph 39 of the ExCo Memorandum of "the futility of the whole BOR exercise".

New Territories Policy

3. On the other hand, paragraph 2 (E) is, possibly, of some comfort in that it will force the Hong Kong Government to look at this issue further. That does not necessarily mean that they will face the substantive issue which, in effect, is either to state that its present policy is to treat Article 40 of the Basic Law as an exception to Article 39 of the Basic Law and therefore to make a specific exception in the current law of Hong Kong, and if necessary the BOR; or to state that they do not consider that there can be any exception to the discrimination provision and be prepared to fight that out with the Chinese. For my part, I do not think that the Hong Kong Government is, in the present circumstances, in a position to take the latter option.

3 PFAAK

CONFIDENTIAL

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