TNAG-2325-FCO40-3369-Hong-Kong-Bill-of-Rights-policy-1991 — Page 113

attacked.

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HKC241/5

37

173323

MDHIAN 5107

CONFIDENTIAL

FM HONG KONG

TO DESKBY 06100OZ FCO

TELNO 1378

OF 060909Z MAY 91

INFO IMMEDIATE PEKING, UKREP JLG HONG KONG

32/

OUR TELNO 1312: BILL OF RIGHTS

كانات

ST?

Tel.

for 215.

1. WE HAVE EXAMINED A PAPER PREPARED BY OUR LAWYERS SETTING OUT VARIOUS OPTIONS OF THE SCOPE OF THE BINDING EFFECT OF THE BILL OF RIGHTS (BOR) AFTER INTER-CITIZEN RIGHTS ARE EXCLUDED (COPY FOLLOWS BY FAX).

2. OUR PREFERRED APPROACH IS TO COMBINE OPTIONS 2, 3 AND 4 IN THE PAPER, I.E. COMBINING A DEFINITION AND A FUNCTIONAL APPROACH. THE DRAFT TEXT OF THE NEW CLAUSE 7 IS AT MIFT, YOU WILL SEE THAT THE DEFINITIONS OF 'PERSONS' AND 'PUBLIC BODY' IN SUB-CLAUSE (2) OF THE DRAFT ARE DERIVED FROM SIMILAR PROVISIONS IN THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE (CAP.1).

3. OUR LEGAL ADVISERS ARE CONSIDERING WHETHER THE DEFINITION OF THE PUBLIC BODY EMBRACING 'ANY UNDERTAKING BY OR OF THE GOVERNMENT' SHOULD BE INCLUDED IN ANY FINAL DRAFT. THEY ARE CONSIDERING THE IMPLICATIONS OF THIS DEFINITION HAVING REGARD TO THE SITUATION WHICH HAS ARISEN HERE WHERE THE GOVERNMENT HAS TAKEN OVER THE OTB BANK AND MANAGED IT AS A GOING CONCERN. THEY BELIEVE THERE ARE GOOD ARGUMENTS FOR SAYING THAT IN A SITUATION LIKE THIS ONE THE BANK SHOULD NOT BE BOUND BY THE BOR ONLY BECAUSE OF ITS GOVERNMENT CONNECTION.

4. WE INTEND THAT SUB CLAUSE (1)(C) WILL BIND PERSONS AND BODIES IN THE PRIVATE SECTOR ONLY IF THEY HAVE ANY PUBLIC FUNCTIONS AND ONLY WHEN THEY EXERCISE THEM. THIS INCLUDES, FOR EXAMPLE, THE STOCK EXCHANGE CO. LTD. WHICH RUNS THE HONG KONG STOCK EXCHANGE AND PROFESSIONAL BODIES LIKE THE MEDICAL COUNCIL WHEN CARRYING OUR DISCIPLINARY OR OTHER PUBLIC FUNCTIONS.

5. THE ADVANTAGE OF A FUNCTIONAL APPROACH IS THAT IT IS CONSISTENT WITH THE LATEST DEVELOPMENTS IN ADMINISTRATIVE LAW BECAUSE IT FOCUSES ON THE CHARACTER OF AN ACTION AND NOT SOLELY ON THE FORMAL STATUS OF THE ACTOR. WE ARE AWARE THAT THIS APPROACH HAS A DISADVANTAGE BECAUSE IT DOES NOT PROVIDE A HIGH

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