Select Committee on Foreign Affairs Minutes of Evidence

Memorandum by the Foreign and Commonwealth Office


  1. In his letter of 30 July to the Secretary of State for Foreign and Commonwealth Affairs, the Chairman of the Committee asked for a memorandum "setting out the arrangements in place, both bilaterally and multilaterally, to monitor observance of the Basic Law and the Joint Declaration, and otherwise to assess compliance with human rights principles". The Chairman's letter asked also that the memorandum should cover the way in which the Secretary of State intended to report to the Committee and to the House on these matters.


  2. The Joint Declaration is an international Treaty between the United Kingdom and China, registered with the United Nations. Both parties are under a legal obligation to fulfil the commitments they have made to each other in this Treaty. The United Kingdom has already fulfilled its two most important commitments: to administer Hong Kong up to 30 June 1997 with the object of maintaining and preserving its economic prosperity and social stability; and to restore Hong Kong to China with effect from 1 July 1997.

  3. China's basic policies towards Hong Kong following the handover are set out in detail in Annex I of the Joint Declaration. This annex is an integral and fully binding part of the Treaty. Its fourteen sections cover: constitutional arrangements; the legal system; the judicial system; the public service; finance; the economic system; the monetary system; shipping; civil aviation; education; foreign affairs; defence; basic rights and freedoms; and right of abode, travel and immigration. Britain has a strong moral and political obligation to do its utmost to ensure that China respects these obligations. The Government is committed to monitoring closely the implementation of the Joint Declaration by the Chinese Government and the Hong Kong Special Administrative Region (HKSAR) Government.


  4. The Basic Law is China's constitution for the Hong Kong Special Administrative Region. It is based on, and develops in more detail, China's policies for Hong Kong as set out in the Joint Declaration, which itself provides for the enactment of the Basic Law. It is a Chinese law, promulgated by the Chinese parliament, the National People's Congress, and does not entail obligations on the part of the United Kingdom. In so far as the Basic Law is provided for by, and intended to give effect to, the Joint Declaration, the Government takes a legitimate interest in its application. But the Government's primary concern is with the implementation of the Joint Declaration.


The Joint Liaison Group

  5. The Joint Liaison Group (JLG) was established under the Joint Declaration to ensure the effective implementation of that Agreement up to the handover, and beyond then to 1 January 2000. Annex II of the Joint Declaration states that the functions of the JLG are:

    b)  to discuss matters relating to a smooth transfer of government in 1997;

    c)  to exchange information and conduct consultations on such subjects as may be agreed between the two sides.

  6. The JLG meets in plenary session at least three times a year, in London, Hong Kong and Peking, but there are frequent, informal contacts between the two sides throughout the year. Each side of the JLG is headed by a Senior Representative of Ambassadorial rank. The offices of the British Senior Representative to the JLG are located within the British Consulate-General in Hong Kong.

  7. The Government attaches a high priority to the work of the JLG. Following the handover, the principal task of the British JLG team is to monitor in a detailed and systematic way the implementation of the Joint Declaration. It follows closely developments relevant to all fourteen sections of Annex I of the Joint Declaration, in particular the section relating to rights and freedoms. Should the need arise, it can seek further information and clarification from the Chinese side of the JLG, or from the HKSAR Government. As the Joint Declaration makes clear, the JLG has no supervisory role over the HKSAR Government. But as a co-signatory of the Joint Declaration, the British Government is entitled to raise through the JLG any matter involving implementation of the Joint Declaration.

The British Consulate-General in Hong Kong

  8. The British JLG team works closely with the Consul-General in Hong Kong, who is Britain's most senior representative in the HKSAR. As with any important diplomatic post, one of the Consulate-General's functions is to follow and report on political and economic developments on the ground. Information is gathered by a wide range of means: from the media and other publications; and through extensive formal and informal contacts with HKSAR officials, politicians, businessmen, NGOs, journalists, educationalists and academics, the churches, representatives of the Chinese Government in Hong Kong, and members of other diplomatic missions. The monitoring role of the JLG team and the reporting role of the Consulate-General are therefore complementary. The Consul-General expects to discuss directly with the HKSAR authorities matters related to the implementation of the Joint Declaration. Where appropriate, he would also raise matters with the Chinese Commissioner for Foreign Affairs (the Chinese Foreign Ministry's senior representative in Hong Kong).

The British Embassy in Peking

  9. The British Embassy in Peking is responsible for monitoring developments in mainland China which are relevant to Hong Kong, such as Chinese policy statements. It also serves as a channel through which to raise matters relating to the implementation of the Joint Declaration. The ambassador has access to Ministers and senior officials dealing with Hong Kong, and his staff have extensive contacts at working level.

The Foreign and Commonwealth Office

  10. Diplomatic reporting from Hong Kong and Peking is collated and analysed by the Foreign and Commonwealth Office. The six-monthly reports on Hong Kong which the Foreign Secretary submits to Parliament draw heavily on that reporting. Regular Ministerial contacts enable the government to maintain its dialogue on Hong Kong matters with Chinese leaders and to keep in close touch with senior members of the HKSAR Government. The Chinese Embassy in London is another channel of communication with the Chinese Government.


  11. There are no formal multilateral mechanisms for monitoring the Joint Declaration, which is a bilateral treaty, but many countries continue to take a close interest in developments. The 1992 US-Hong Kong Policy Act for example provides for an annual report from the US Government to Congress on Hong Kong, and the European Commission has said that it intends to publish an annual report.

  12. Shortly before the handover, both the European Union and the G8 issued strong statements of support for the implementation of the Joint Declaration and Basic Law. The Amsterdam European Council agreed conclusions which emphasised the importance which the European Union "attaches to full respect for the rights and freedoms of the Hong Kong people and the high degree of autonomy, including for trading purposes, accorded to Hong Kong under the Sino-British Joint Declaration and the Basic Law of the Hong Kong Special Administrative Region, the implementation of which offers the best assurance for Hong Kong's future". The communiqué issued at the Denver Summit noted the G8's "durable interests" in Hong Kong and welcomed China's commitments in the Joint Declaration and Basic Law, which would "provide the essential underpinnings for Hong Kong's future economic success". It took "serious note of China's assurances in the Joint Declaration and Basic Law that the provisions of the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights will continue to apply in Hong Kong". These statements underline the interest of many governments in Hong Kong's future and the scope for Hong Kong to be discussed whenever necessary in a variety of international fora.

  13. Additionally, the Joint Declaration and Basic Law provide for the continued application of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in respect of Hong Kong. The Government believes that this requires the submission of reports to the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights. The Government considers that it is for China, as the state with international responsibility for the HKSAR, to ensure that these reports are submitted. The Chinese Government has not yet made clear how it plans to fulfil the reporting obligations although it has said that it will sign the Covenant on Economic, Social and Cultural Rights by the end of this year. We shall continue to press them to clarify their intentions. The United Nations committees have stated that they are willing to receive reports direct from the HKSAR Government, and the British Government has made clear that it would not object to this. Our six-monthly reports on Hong Kong are also available to the Treaty Monitoring Bodies.

  14. Before the handover, Britain and China also reached agreement in the JLG on a mechanism to allow the continued application of over 200 multilateral agreements to Hong Kong after the handover. These agreements include four human rights conventions ratified by China, and which involve reporting obligations. They are: the Convention on the Elimination of Racial Discrimination; the Convention on the Rights of the Child; The Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture and all Forms of Cruel, Inhuman or Degrading Treatment. In all four cases, the Chinese Government has accepted the obligation to report on the application of these conventions in respect of Hong Kong.


  15. The Government's principal means of reporting on these issues is through the six-monthly reports which the Foreign Secretary has undertaken to produce at least until the JLG concludes its work on 1 January 2000. The Foreign Secretary has written to the Chairman of the Committee to welcome its decision to monitor observance of the Joint Declaration and Basic Law, including through examination of the six-monthly reports. Future reports in this series will be modelled on the first report, and will include a systematic analysis of developments under each section of Annex I of the Joint Declaration. Special attention will be paid to developments concerning human rights. The Government will additionally report to Parliament whenever it considers that is warranted, or when asked to do so, for example by the Committee or in reply to oral and written questions.


  1. This note sets out the arrangements to be used in Hong Kong's legislative elections on 24 May. It includes background on Hong Kong's constitutional development and an assessment of the compatibility of the arrangments with the Joint Declaration, the Basic Law, and the 1990 Sino-British exchange of correspondence on electoral arrangements.


  2. Before 1984 there were no elected members on the Legislative Council ("LegCo"). The Joint Declaration set a broad framework for future democratic development, by specifying that the legislature of the HKSAR would be "constituted by elections". Subsequently, more detailed stipulations on the composition of post-1997 legislatures were included in the Basic Law, promulgated in 1990.

  3. In response to a growing wish in the community to see more representative government in the territory, the Hong Kong Government gradually introduced elected LegCo seats, starting with indirect elections through an Electoral College and functional constituencies in 1985. Direct elections from geographical constituencies were introduced in 1991. The 1995 LegCo was the first to be wholly elected, through a mixture of indirect and direct elections. Annex A sets out the composition of the four LegCo's elected between 1985 and 1995, together with the composition stipulated by the Basic Law for elections after 1997.

  4. The composition of the LegCo elected in 1995 was consistent with the specifications in the Basic Law for the first SAR legislature. Twenty members were elected from geographical constituencies, 30 from functional constituencies, and 10 by an Election Committee. The Chinese Government nevertheless claimed that this LegCo did not meet the requirements of the Basic Law, and on 1 July 1997 it was replaced with a "provisional legislature" chosen in 1996 by a hand-picked 400-member Selection Committee.


  5. Following the handover, the HKSAR Government moved quickly to prepare for elections to a new legislature. The Legislative Council Ordinance was adopted by the provisional legislature on 28 September, and sets out the detailed arrangements for the elections. The arrangements reflect the framework established by the Basic Law and by the "Decision on the Specific Method for the Formation of the Hong Kong SAR's First Legislative Council", adopted by the Hong Kong SAR Preparatory Committee in May 1997.

  6. As in 1995, the 1998 LegCo will be composed of 20 seats elected from geographical constituencies, 30 from functional constituencies, and 10 by an Election Committee. The key differences between the 1995 and 1998 arrangements are in the arrangements within these different types of constituencies.

Geographical constituencies

  7. In 1995, first-past-the-post voting in 20 single-seat constituencies was used. In 1998, a list-based system of proportional representation will be adopted: candidates will be elected from five multi-seat constituencies of three to five seats each. Voters in each constituency will vote for a list of candidates from one party. Seats will be allocated within the constituency roughly in proportion to the number of votes cast for each party. 2.8 million voters are registered to vote in these constituencies, compared with 2.53 million in 1995, and 1.91 million in 1991.

Functional constituencies

  8. Functional constituencies (FCs) were originally intended to represent business and professional sectors said to make a special contribution to the community. The 1995 arrangements developed the concept by extending the franchise of the nine new FCs to include virtually the whole working population. For the 1998 elections, the HKSAR Government have returned to the earlier definition of this type of constituency. Accordingly, the franchise has been significantly reduced: from an eligible electorate of about 2.7 million in 1995 to around 229,000. About 148,000 voters have registered to vote. In 1991 the electorate was just over 103,000.

  9. There are 28 FCs, listed at Annex B. The Labour FC returns three members; the others return one each. The electorates range from 50 individuals in the Urban Council FC to almost 75,000 in the Education FC. In the first six FCs, a system of "preferential elimination" will allow voters to list candidates in order of choice. Candidates with fewer votes will be gradually eliminated and votes redistributed until one candidate gains an overall majority. In the other constituencies, first-past-the-post voting will be used. A significant departure from 1995 is that corporate voting (as opposed to voting by individuals) will be used to elect 20 of the members. Corporate voting had been used up to 1991 but had resulted in abuses, and was replaced with individual voting in all FCs in 1995.

The Election Committee

  10. The Election Committee comprises 800 members, with 200 from each of the four sectors: industry, commerce, finance; the professions; labour, social services, religion; political (including members of the provisional legislature and Hong Kong deputies to the Chinese National People's Congress). Elections were held on 2 April to choose 588 members of the Committee (the other members are from uncontested subsectors, ex-officio, or directly nominated by the Religious Subsector). A total of 32,630 voters participated, a turn-out of about 23 per cent. The 1995 Election Committee was composed of District Board members who had themselves been directly elected in local elections.

  11. On 24 May, each elector on the Committee must cast ten votes. The candidate who obtains most votes will be elected first, followed by the candidate with the second most, and so on, until ten candidates have been elected. Nominations to stand in this part of the election must be supported by at least 10 Election Committee members.

Other provisions

  12. Other key provisions of the Legislative Council Ordinance include:

    —  voters eligible to vote both in the FCs and Election Committee may only vote in the latter. They are also entitled to cast a vote in the geographical constituencies;

    —  an independent Electoral Affairs Commission (EAC) has been established to oversee the elections. It is chaired by a highly respected judge, Justice Woo Kwok-hing, who headed the pre-handover Boundary and Election Commission.


Joint Declaration

  13. The Joint Declaration provides only that the legislature must be constituted by elections. It does not define the nature of these elections. As far as we know, there has been no suggestion in Hong Kong, including from those who have criticised the arrangements, that they are inconsistent with the Joint Declaration.

Basic Law

  14. The compatibility of these arrangements with the Basic Law is primarily for the Hong Kong courts to judge. It is nevertheless clear that the basic composition of the 1998 LegCo will accord with the requirements of the Basic Law.

1990 Sino-British correspondence

  15. The 1990 correspondence was an attempt to reach agreement on what the Basic Law should say about the composition of LegCo, in particular the number of directly elected seats. It also touched—inconclusively—on pre-handover arrangements. The Chinese Government claimed that the 1995 electoral arrangements breached understandings reached in this correspondence. In fact, at the end of these exchanges, the question of electoral arrangements up to 1997 remained open. Following the implementation of the Basic Law, the question of compatibility of current arrangements with this correspondence may be less relevant.

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Prepared 3 July 1998