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Chinese acceptance of the BOR.. We were also aware of the danger that such acceptance may not be forthcoming however it is drafted. In our view the BOR would still perform a useful (though more limited) function even if it were to be denounced in 1997; it would at least have cleared the statute book of all laws inconsistent with the ICCPR which would be open to abuse by a non-benevolent SAR G. Mr Ehrman considered this to be of no importance.
(iii) Mr Ehrman agreed that the "full prize" (ie public
acceptance of the BOR by the Chinese) may not be attainable. In his view, it would be worth amending the BOR to achieve a "half prize", whereby the Chinese agreed to reserve their position. I explained legal advisers' view as set out in Mr Fifoot's fax, with which David Edwards is also in broad agreement, of the possible disadvantages of insertion of the words "subject to the BL" in the BOR. Mr Ehrman did not accept that there would be any disadvantage from a legal point of view. Moreover, the Attorney General had said that he would instruct the courts to give precedence to BL 39 over any conflicting provision of the BL. I queried this (since it was clear that no lawyer would have said that the A/G could instruct the courts) but it was difficult to press the point without appearing discourteous. (I later took this point up with the A/G himself. He had at some time stated that he might intervene in some BOR cases in order to put to the court his view as to the correct interpretation. The courts naturally would not be obliged to accept his view any more than any other lawyer's. He was concerned that such a serious misunderstanding as to his powers could have
arisen).
5. MEETING WITH MR GALSWORTHY: DISCUSSION ON BOR
(i) We discussed the effect, in legal and political
terms, of the "subject to the BL" formula. Like Mr Ehrman, he did not accept that it could have any effect on the legal meaning of the BOR, since it would be subject to the BL anyway. I agreed that, if analysed logically, it ought not make any difference; nevertheless we considered that it might influence judicial perceptions of the relationship between BL39 and other parts of the BL. Mr Galsworthy remained unconvinced but agreed that such an amendment would have disadvantages in terms of public perception. His inclination was that the amendment should only go ahead if it would secure
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