TNAG-2334-FCO40-3397-Future-of-Hong-Kong-Crown-Proceedings-Ordinance-1991 — Page 20

CONFIDENTIAL

5.

Hence our concern about the present legal position of the British Forces in Hong Kong. It will be extremely difficult for us to argue (as we might at some stage have to) that the PLA should be subject to civil action in the Hong Kong Courts after 1997 if we ourselves have never seen fit to provide for this in relation to UK forces before 1997. We and our Legal Advisers have therefore given some preliminary thought as to how (subject to MOD views) the current legal position might be adjusted before the transfer of sovereignty.

6.

Our Legal Advisers have suggested four possible alternative courses which we might explore with you:

(a)

(b)

(c)

(a)

7.

as

creating the Secretary of State for Defence a corporation

(This would sole under the Ministers of the Crown Act. only be of assistance if, a matter of law, he was capable of being sued in his corporate capacity in Hong Kong. At first sight, we would not think that would be a problem but it is something on which we might wish to consult Hong Kong in due course);

amending the Crown Proceedings Ordinance to give either a general right to sue the Crown in right of the United Kingdom or a right to sue in respect of acts of omissions. of UK Forces. (We doubt whether there would be support for the former. at this late stage in the colony's history. But we would be grateful for your views on the possibility of our proceeding on the latter variation);

as

proposing that where the British Forces are likely to be sued you appoint a dummy defendant in the same manner was done in the United Kingdom prior to the Crown Proceedings Act 1947;

proposing that you adopt a non statutory system of arbitration for dealing with claims on the understanding

It would then that you would not resile from arbitration.

be up to the other party whether or not they took advantage of the system. Even if they decline to do so, they cannot complain that there was no remedy available to them.

Our initial view is that, subject to the caveat at (b), any of these options could provide us with a useful precedent in relation to the legal position of the post-1997 garrison in Hong Kong. However, we shall of course need in due course to explore the practicalities with the Hong Kong Government, and indeed to

My seek their views on the relative merits of the four options. own guess is that Hong Kong would find (b) the most attractive of the four options outlined above.

CONFIDENTIAL