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only part of a state.
We need therefore to find a way of ensuring that a post 1997 UK/HKSAR agreement will be consistent with our domestic legislation.
Mrs Evans explained that they are currently preparing an amendment to the Criminal Justice Bill which would redefine "foreign state" to extend the European Convention definition to cover the overseas territories of France and the Netherlands. At the Committee stage it might be possible to promote an amendment to this amendment to cover Hong Kong. Miss Brooks asked if the definition of "foreign state" could be drafted in such a way as to be decided by Order in Council later. Mrs Evans said she would consider this; it would be necessary to decide the scope of such powers, and Parliament was becoming increasingly reluctant to allow Ministers to amend primary legislation.
Miss Brooks asked if it would be possible to have an MoU with HK before 1997 and convert that into an agreement thereafter, for example by substituting "shall" for "may". Mrs Evans said that this would not alter the problem of HK not being a "foreign state" after 1997.
Mrs Evans explained that at present HK would come under Section 5 of the 1989 Act, which covers certain Commonwealth countries and colonies. Foreign states come under Section 3. Section 3 depends on an Order in Council under Section 4, whereas Section 5 does not. She said the essential problem was to draft a form of words appropriate to describe HK, and persuade Ministers to accept it. She said it would be good to include it in the present Criminal justice Bill if possible because of the analogy with the territories of France and the Netherlands.
Mr Goodwin asked if Section 2 (4) (b) meant that extradition crimes in a dependency were treated as for a foreign state. Mrs Evans said this was so, but to use this would involve having an SOFO treaty with China, which would be undesirable.
Miss Brooks said she and Mrs Evans would try to produce a form of words suitable to HK, and FCO Ministers would write to Home Office Ministers. Mrs Evans said first we would need to carry forward the draft instructions to Parliamentary Counsel. She mused upon HK's unique status after 1997 Section 3 will cover colonies of foreign states, but HK will not be a colony of China! Miss Brooks suggested an MOU as a fallback position, but Mrs Evans said that the 1989 Act required a formal and binding extradition treaty to confer authority to extradite persons to HK. Miss Brooks asked about the possibility of parallel legislation under Section 5. Mrs Evans said that this would involve adding "and designated former colonies" to Section 5, and then designating HK. Miss
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