TNAG-2334-FCO40-3397-Future-of-Hong-Kong-Crown-Proceedings-Ordinance-1991 — Page 35

CONFIDENTIAL

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(iii)

(iv)

Consult the Chinese early on the adaptation of the Crown Proceedings Ordinance and on the current proposal at the same time. The advantage of this option is that it avoids the risks of not consulting and saves time by consulting once instead of twice. However, our current thinking on selecting laws for discussion about their adaptation is to discuss items which are neither trivial nor controversial first. This may be too difficult an item to begin with. Moreover, this Ordinance would need to be discussed with other instances of laws in which the Crown is referred Given these considerations, this option probably has to be ruled out.

to.

Proceed with our proposals without consulting the Chinese before the adaptation stage. We could then achieve a better base for subsequent adaptation, insofar as object (a) is concerned than we have now, while achieving object (b). The danger of this is

that the Chinese will make it difficult for us at the adaptation stage. However, if option (iii) has to be ruled out, we do not really have much to lose by going down this path.

In

all the circumstances, our inclination is to go for option (iv). I have consulted Doug Martin of the British JLG Office here who agrees that we would do best so to proceed

if the Chinese do protest we can argue that the change is a minor one involving merely where the Crown can be sued, and is not a fundamental change to the system. The Chinese may well seek to make amendments at the stage of adaptation, but we will need to deal with this when it arises.

It is

perhaps questionable whether the proposed amendments are So desirable or urgent that they are worth making for the very short space of time in which they will have force. That question is certainly pertinent to the amendment to enable members of the British Forces in Hong Kong to sue the Crown/UK in the Hong Kong Courts. Even in the case of

Crown/UK in that the

amendment to allow HK residents to sue the Hong Kong, there may be very little likelihood Chinese will regard existing practice as necessarily binding on them in an area which they will see as touching on the relationship between the SARG and the central authorities.

At this stage, however, subject to

inclined to

your comments, we proposal.

are

proceed with the

Yours

اكوينه

Peiltry Our

(G.M. Orr )

for Secretary for Constitutional Affairs

c.c. D.G. Martin, Esq.