CONFIDENTIAL
46
016401
MDHIAN 6261
CONFIDENTIAL
FM HONG KONG
TO IMMEDIATE F C O
TELNO 1482
OF 131105Z MAY 91
HKC241/5
INFO PRIORITY PEKING, UKREP JLG HONG KONG
142
(44
Tel out
fa Ru
13/5
TOP COPY Q DIST?
OUR TELNO 1424 AND YOUR TELNO 876: BILL OF RIGHTS: INTER-
CITIZEN RIGHTS
2.
WE ARE GRATEFUL FOR YOUR PROMPT RESPONSE TO FIRST TUR.
PARA 1 AND 2 OF YOUR TUR HAVE CORRECTLY POINTED TO OUR
POLICY CONSIDERATIONS. WE FULLY ACCEPT THAT THE TWO APPROACHES SET OUR RESPECTIVELY IN OUR TELNOS 1379 AND 1424 WILL CREATE UNCERTAINTY: THE FORMER OUT OF THE FORMULATION USED IN SUBCLAUSE 1(C) AND THE LATER BECAUSE OF THE REFERENCE TO ''PUBLIC AUTHORITIES
·
! !
WE ALSO AGREE WITH YOU THAT THE LATTER APPROACH IS LIKELY TO BE CONSTRUED MORE NARROWLY AND MAY NOT COVER BODIES SUCH AS THE STOCK EXCHANGE, THE JOCKEY CLUB ETC. WE HAVE ALSO NOTED THE DEVELOPING ECJ JURISPUDENCE ON THE CONCEPT OF 'STATE' ACTION. HOWEVER, HAVING BALANCED THE LEGAL ARGUMENTS WITH PRACTICAL CONSIDERATION, WE HAVE DECIDED TO FOLLOW THE LATTER APPROACH:
(A)
(B)
IN POLITICAL TERMS, THE UNCERTAINTY OF THE FUNCTIONAL APPROACH IS LIKELY TO CAUSE THE CONCERNS OF BODIES WHICH ARE NOT PUBLIC AUTHORITIES BUT WHICH MAY BE CONSTRUED AS CARRYING OUT COME PUBLIC FUNCTIONS. SUCH CONCERNS SHOULD BE AVOIDED AS FAR AS POSSIBLE, PARTICULARLY AS THE DECISION TO TAKE OUT INTERCITIZEN RIGHTS IS PURPORTEDLY TO REMOVE A MAJOR PROBLEM OF THE BOR, I.E. THE UNCERTAIN EFFECTS ON THE ''PRIVATE'' SECTOR.
TO BE ON THE PRUDENT SIDE, WE WOULD NEED TO CONSULT EXCO IF WE DECIDED TO APPLY THE BOR TO SUCH BODIES. IT IS DOUBTFUL WHETHER EXCO WOULD ACCEPT THE FUNCTIONAL APPROACH GIVEN THE CONSIDERATION IN (A) ABOVE. TIMING WISE, THIS WILL MEAN A DEFERRAL OF THE PASSAGE OF THE BILL FROM 5 JUNE TO 26 JUNE. (THERE WILL BE NO LEGCO SITTING ON 12 JUNE OR 19 JUNE BECAUSE OF THE QUEEN'S BIRTHDAY RECESS). THE LATTER DATE IS MOST UNSATISFACTORY BECAUSE
IT WILL BE IMMEDIATELY AFTER THE INTERNATIONAL CONFERENCE
1
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CONFIDENTIAL
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