TNAG-2668-FCO40-3865-Hong-Kong-Civil-Service-1993 — Page 121

dow Whitney

Let's discuss.

22/4,

HKA 016/1

Mr

HKD

Morris

From:

Miss S Brooks

Legal Counsellor

17 MA› 199

Date:

20 April 1993

DESK

HONG KONG:

1.

LOCALISATION POLICY

Thank you

Pannick, QC.

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for letting me see the Opinion given by Mr David I agree generally with his conclusions; his advice seems very sound. Doubtless Hong Kong Department and the Hong Kong Government will wish to consider whether to take up his suggestion of an amendment to the Civil Service Regulations (see paragraph 25 of his Opinion).

2.

You asked for any ideas I might have in general on this issue. The tactical question of how to handle it raises difficult choices. The Hong Kong Government have not envisaged amending their policy and going ahead without consulting the Chinese. They envisage as options, amending their policy and consulting the Chinese on the changes, or defending the policy. In the case of defending the policy, they envisage that the AECS may take the issue to court. If the Hong Kong Government win the case, all would be well; if the Government were to lose the case, they would have to consult the Chinese, but the Government are also contemplating that if they lose, they may go ahead with implementing a new policy without first consulting the Chinese.

3. I do not think it is a foregone conclusion that the AECS will go to court on this issue, although there is, of course, that risk. If the Government decides to defend the policy and subsequently a case is brought alleging that the localisation policy is contrary to Article 22 of the Bill of Rights and the Government loses the case, the Chinese are likely, in the view of the Government, to be upset because this would show up a defect in the localisation policy on the basis of the Bill of Rights which the Chinese oppose. If the decision were to be taken to amend the policy so as to satisfy the AECS and to consult the Chinese, it would not be so apparent that the localisation policy risked being found defective under the Bill of Rights although the Chinese would have to be given some explanation as to why the policy was to be changed. This option is less difficult. My view however is that all the scenarios put forward by the Hong Kong Government other than the one of going to court and winning, risk problems with the Chinese.

If the present policy were defended, there is a chance that this issue may not go to court after all and even if it were to

4.

1

/go

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