TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 17

CONFIDENTIAL

44

D

(Ms Barrett's minute of 3 April)

3.

I submit an options paper which takes account of these

exchanges. It suggests:

(a) that there is no legally watertight solution: even if Hong Kong made detention mandatory in all cases and for an indefinite period, there would be a risk of the courts holding that excessively long detentions were not for the proper purpose and were therefore unlawful;

(b) that there is an inherent contradiction between our obligations under the ICCPR and the current policy of detention. We cannot remove that contradiction without abandoning the closed camp policy (the consequences of which are spelled out in the options paper); and

(c)

it is no longer acceptable to Hong Kong to continue

with the status quo.

There is a real risk of successful

challenge which could completely undermine present policy.

We are therefore seeking the best possible compromise between, on the one hand, sticking rigidly to our ICCPR obligations and, on the other, maintaining Hong Kong Government's ability to deal with the VBP problem.

Recommendation

SEAD

4. I believe that Hong Kong's proposed amendments as set out in the options paper best meet these requirements. agree and Legal Advisers agree, subject to the condition that as soon as possible after enactment Hong Kong Government establish an independent body to review transfers in individual disciplinary cases. (In the telephone conversation with Legal Advisers, Hong Kong Government officials indicated that they would be prepared to do so).

I therefore recommend that Ministers authorise Hong Kong

TOMBAZ/2

CONFIDENTIAL