TNAG-2221-FCO40-3189-Constitutional-development-in-Hong-Kong-role-of-the-Legislat-1991 — Page 39

4. The Interpretation and General Clauses Ordinance (cap. 1) applies to any Ordinance by virtue of its section 2. Section 3 of it defines "public officer" as "any person holding an office of emolument under the Crown in right of the Government of Hong Kong, whether such office be permanent or temporary. Members of the Joint Liaison Group do not hold their offices under the Crown in right of the Government of Hong Kong, but under the Crown in right of the Government of the United Kingdom. Only Hong Kong Government officials with the Governor's consent may give evidence under section 14 (2) and such evidence may only relate to correspondence concerning the administration of Hong Kong by the Hong Kong Government. Evidence relating to correspondence concerning the responsibilities of HMG in the UK otherwise than with respect to the administration of Hong Kong by its Government is excluded. Joint Liaison Group business relates to the responsibilities of HMG in the UK in its dealings with the Chinese over the future of Hong Kong. The JLG is not part of the Hong Kong Government. Nor has it any part to play in the administration of Hong Kong. Indeed such a role is

specifically excluded by paragraph 6 of Annex II to the Sino-British Joint Declaration 1984:

"The Joint Liaison Group shall be an organ for liaison and not an organ of power. It shall play no part in the administration of Hong Kong .... Nor shall it have any supervisory role over that administration ....".

5. While it is clear from section 14 (2) that British JLG members are exempted from giving evidence before Legco or one of its committees or from producing any paper, book, record or document which in either case relates to correspondence concerning HMG's responsibilities in the UK, this is a fairly narrow exemption because (although the drafting is rather unclear) this section applies only where correspondence is involved. The question arises whether JLG members would have to appear before Legco to give evidence concerning HMG's responsibilities in the UK where correspondence is not involved. The solution may lie with section 14 (1) of the Ordinance.

6. Section 9 of the Ordinance is subject also to section 14(1). The latter section provides that a person lawfully ordered to attend to give evidence or to produce a paper, book, record or document before the Council or a committee shall, subject to the privilege against incrimination of oneself or one's spouse, be entitled "to the same right or privilege as before a court of law." Paragraph 10 of Annex II to the Joint Declaration (JD 196) provides that JLG proceedings "shall remain confidential unless otherwise agreed between the two sides." I think I agree with Mr Findlay (as set out in his opinion of 24 October) that public interest /immunity