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2.
Mr Hendry is now in Brussels at UKREP. I am copying this correspondence to Mr Chamberlain, Legal Adviser to WIAD, in case he has any comments on the experience of the dependent territories covered by WIAD as requested by Hong Kong (Mr Orr's letter of 10 April to yourself requests this at paragraph A on page 2).
3.
I note that draft Section 7 A abolishes the immunity not only as respects members of the armed forces of the Crown in right of the Government of the United Kingdom but also the immunity as respects members of the forces of the Crown in right of the Government of Hong Kong. This is a matter of policy to which Ian Hendry's letter of 20 April 1988 refers.
B Right to sue the Crown in right of HMG in the UK
I regret I am unable to suggest appropriate post titles in Section 8 A(2)(a) of the Bill. If MOD cannot help, I suggest you ask the Treasury
4.
5.
Section 8 A(1)(a) of the Bill goes wide because it refers to any civil proceedings. I think there is an argument for reflecting Section 34 (a)(b) of the Ordinance and confining the scope of proceedings to those to be taken under or in accordance with the provisions of this Ordinance. I suggest deleting the word "will" before "proceedings" and inserting after "proceedings", the words "under or in accordance with the provisions of this Ordinance".
6. I am unclear why Section 34 (2)(a) of the Ordinance is mentioned in the chapeau to draft Section 8 A(1) in the Bill. The amendment in Section 8 A(1) appears to relate only to Section 34 (2)(b) of the ordinance.
7. I have considerable doubts about the desirability of section 8 A of the Bill. It is certainly undesirable from the point of view of the UK even though the Crown in right of the UK can in fact sue Hong Kong residents. Section 8 A goes far wider than MOD's limited interest. It covers agents, departments and officers, so that the BTC, the PSA and UKREP JLG could be sued; highly undesirable.
On
8. Moreover I cannot imagine the Chinese welcoming this proposal. It might have had a chance had it been part of Hong Kong law for many years but it comes too late in the day. the other hand, if the Chinese were likely to accept that it should be adopted, there would be strong reasons for going ahead. It would benefit Hong Kong residents to be able to bring actions against Chinese agents, departments and officers. We would need however to be sure that the People's Liberation Army would be covered by such references when the
/Ordinance
Ordinance is adopted. I do not know enough about the
constitution of the PLA. I suggest we ask MOD whether the reference to agents, departments and officers would cover the PLA in their view.
Shelagh Brooks.
S Brooks
No comments yet.
Private notes are available after approval.