TNAG-2325-FCO40-3369-Hong-Kong-Bill-of-Rights-policy-1991 — Page 76

CONFIDENTIAL

016401

MDHIAN 261

(C)

(D)

3.

ON THE BOR ORGANISED BY THE HONG KONG UNIVERSITY AND

COINCIDES WITH THE VISIT OF THE INTERNATIONAL COMMISSION

OF JURISTS MISSION. COMMENTS MADE BY INTERNATIONAL

LEGAL EXPERTS ON THE BOR IS LIKELY TO REVIVE PUBLIC DEBATE ON THE PERCEIVED INADEQUACIES OF THE BOR AND MAKE ITS

PASSAGE ALL THE MORE DIFFICULT AND CONTROVERSIAL.

THE ACTIVITIES WHICH MAY BE CONSIDERED TO BE OF A PUBLIC NATURE BUT WHICH MIGHT ESCAPE THE BOR ALTOGETHER IF THE FUNCTIONAL APPROACH WERE REMOVED IS RATHER LIMITED IN SCOPE. OUR ASSESSMENT IS THAT MOST OF THE BODIES MENTIONED IN PARA 4 OF YOUR TELNO 871 WILL BE COVERED BY THE BOR EVEN IF THE FUNCTIONAL APPROACH IS REMOVED (SEE MIFT). IN ANY CASE, THE OPTION OF JUDICIAL REVIEW IS OPEN TO THE INDIVIDUAL THOUGH IT IS TRUE THAT THE SCOPE FOR JUDICIAL REVIEW BOTH IN TERMS OF CAUSE OF ACTION AND THE REMEDIES AVAILABLE IS NARROWER THAN WILL BE THE CASE WITH THE BILL OF RIGHTS.

WE AGREE THAT IN THE ABSENCE OF A BROAD FUNCTIONAL APPROACH, HONG KONG COURTS ARE LIKELY TO CONFINE THEIR INTERPRETATION OF QUOTE PUBLIC AUTHORITIES UNQUOTE INITIALLY TO THOSE DIRECTLY UNDER OR CLOSELY RELATED TO GOVERNMENT. NEVERTHELESS IN VIEW OF LIKELY ARGUMENTS THAT BODIES WHICH EXERCISE PUBLIC POWERS OR PERFORM FUNCTIONS ARE QUOTE PUBLIC AUTHORITIES UNQUOTE, THE COURTS ARE LIKELY TO ADAPT THEIR APPROACH TO INCLUDE EVENTUALLY OTHER KINDS OF AUTONOMOUS OR QUASI-AUTONOMOUS BODIES EXERCISING PUBLIC FUNCTIONS. THE DIFFERENCE BETWEEN WITH AND WITHOUT THE FUNCTIONAL APPROACH WOULD BECOME NARROWER THAN WE THOUGHT. WE ARE AWARE THAT THE U.K. COURTS HAVE UNDERGONE SUCH AN ADAPTATION PROCESS.

IN VIEW OF THE ABOVE, WE PROPOSE TO GO BACK TO THE LEGCO AD HOC GROUP ON 15 MAY WITH THE DRAFT CLAUSE 7 SET OUT IN TUR, I.E. WITHOUT THE FUNCTIONAL APPROACH. THIS IS THE ABSOLUTE DEADLINE IF WE ARE TO RESUME LEGISLATIVE PROCESS ON 5 JUNE.

FORD

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