Examination of witnesses (Questions 1
- 19)
TUESDAY 28 APRIL 1998
MR DEREK
FATCHETT, MP,
MR GRAHAM
FRY and MR
STEPHEN LILLIE
Chairman
1. Minister, welcome. Hong Kong. Last July,
as you know, the Foreign Affairs Committee agreed to examine—and
I quote—"on an ongoing basis, the observance of the
Joint Declaration and the Basic Law in Hong Kong, to include examination
of the periodic reports to be submitted to Parliament by the Foreign
Secretary". We have seen the two reports published thus far
by the Foreign Office, January to June 1997, Command 3719, and
July to December 1997, Command 3831. The Committee visited Hong
Kong from March 30 to April 4, Mrs Bottomley indicated that she
was not there. We met during that visit a wide variety of people
from the Chief Executive through to community activists and may
I say that the Committee is most grateful for the excellent service
we had from the Consul-General and his staff in Hong Kong who
gave us everything we wanted and were there whenever needed. As
you know, Minister, there is considerable interest in Parliament
in Hong Kong and it is the role of this Committee on behalf of
Parliament to hold your Ministry, the Foreign Office, to account
in respect of the Hong Kong policy. On the surface it is business
as usual since the handover in the middle of last year yet there
were many concerns expressed to us by democratic politicians and
by human rights' activists about potential and actual dangers
to those human rights which the people of Hong Kong were used
to enjoying. It would be helpful to begin, Minister, if you were
to give us your overall impression of the position in Hong Kong
since the handover and perhaps seek to update the Committee on
your perceptions since the last Six-Monthly Report was published
in January this year.
(Mr Fatchett) Donald, thank you for those opening
remarks and I will certainly be happy to say a few words to respond
to your question. Can I just take the opportunity of thanking
you on behalf of the British Consulate staff and certainly I will
convey your thanks and good wishes to Sir Andrew Burns and his
colleagues. Can I also introduce my two colleagues here with me
this morning. Graham Fry, who is our Director of the North Asia
Pacific Command and Stephen Lillie, who is the head of section
for Hong Kong and China. Donald, can I start off by saying a few
words. Following the transfer of sovereignty last July, the UK
Government retains a strong moral and political commitment towards
Hong Kong and its people. This reflects our responsibilities as
a co-signatory of the Sino-British Joint Declaration, and our
considerable interests in Hong Kong. The Government, therefore,
welcomes the Foreign Affairs Committee's interest in UK-Hong Kong
relations and your recent visit to Hong Kong. Consistent with
our responsibilities towards Hong Kong, we have undertaken, as
you have indicated already, to report to Parliament every six
months on the implementation of the Joint Declaration for at least
as long as the Joint Liaison Group exists. You have seen our report
covering the first six months of the Hong Kong Special Administrative
Region's existence. In the three months since that report was
published, we have continued to follow developments closely. As
in our Six-Monthly Report, our current assessment remains basically
positive. The Asian financial crisis has cast a shadow over the
Special Administrative Region's early life. As far as Hong Kong's
autonomy is concerned, the indications are largely positive. China
is adhering to the principle of one country, two systems. During
his visit to Beijing in January, senior Chinese leaders again
reassured the Foreign Secretary of their continuing commitment
to this hands-off policy. Indeed, when a Hong Kong deputy to the
Chinese People's Political Consultative Conference said in March
that the editorial independence of the government-owned broadcaster
Radio Television Hong Kong should be curbed, President Jiang Zemin
responded quickly, publicly telling the members of Chinese parliamentary
bodies not to interfere in the Special Administrative Regions's
affairs. This injunction extends also to those members representing
Hong Kong. Hong Kong's basic rights and freedoms are currently
being upheld. You saw for yourself as a Committee during your
visit that political parties, community groups, churches and non-governmental
organisations remain active and outspoken. Much has been said
about self-censorship in the Hong Kong press. Undoubtedly in our
view there is some, but the media do not let the SAR authorities
off lightly; nor is there any evidence so far of Chinese interference
in the press. The Hong Kong SAR Government is maintaining a clean
and effective administration, upholding the ideals of integrity
and public service central to the pre-handover Government. They
welcome the high degree of autonomy given them by the Joint Declaration
and by the Basic Law and they have made full use of this in responding
to the effects of the Asian financial crisis. The Hong Kong dollar
peg was defended without any evident assistance from China. Beijing
was not consulted either on the drafting of the first SAR budget
in February. We are not however, Chairman, complacent. Our first
two Six-Monthly Reports and other official statements unequivocally
set out our opposition to the Provisional Legislature. We have
also explained our concerns about the arrangements for the legislative
elections scheduled for 24 May, in particular the sharp reduction
in the franchise for the functional constituencies. The fact that
the elections are being held is a positive development because
it will lead to the creation of a legislature in which democratic
voices will again be heard, although given the way the election
arrangements have been structured the precise composition of LegCo
will not fully reflect popular opinion. We shall follow the elections
closely and report back in detail in our next Six-Monthly Report.
Future constitutional developments in Hong Kong will remain an
issue of considerable concern to us. We are aware that in the
past two months, in particular, concerns have increased in Hong
Kong about the rule of law. These concerns have been prompted
in particular by the Adaptation of Laws Ordinance, and by decisions
not to prosecute in two separate sensitive cases. I should make
clear that our overall assessment, based on the big round picture,
is that the rule of law remains robust in Hong Kong. It is underpinned
by strong institutions and by individuals of considerable personal
integrity. The common law system remains in full force. But it
is only right that in such an important area decisions are subject
to close public scrutiny. As a British minister, it is not for
me to say whether decisions taken by the SAR's independent prosecutors
are well judged or not, and I must leave it to the Hong Kong courts
to decide how in practice the law is applied to Chinese state
bodies, but I can sympathise with those who are worried about
the ambiguous nature of the New China News Agency, its functions
and its position before the law in Hong Kong. I would sympathise
with those who wish to see all of this properly and fully clarified.
So also, Chairman, with human rights. As I have said already,
these are being upheld: it is easier to cite examples of rights
being exercised than to pinpoint any particular abuses. The fact
that reports on Hong Kong under the International Human Rights
Covenants are expected to be submitted to the UN Treaty Monitoring
Bodies in August is extremely welcome. They will of course be
closely scrutinised both in Hong Kong and internationally and
no doubt by world public opinion. We do not treat lightly the
concerns of those who worry about the future effects of the pre-handover
decisions to amend the Public Order and Societies Ordinances.
The fact that controversial provisions on national security in
these Ordinances have not as yet been implemented does not in
itself give full reassurance to popular opinion. We know too that
many people question whether the Provisional Legislature was the
right place to deal with controversial decisions on labour laws
or the Bill of Rights Ordinance. We shall continue to watch this
whole area of rights and freedoms closely, particularly as the
Special Administrative Region Government comes to legislate on
highly sensitive issues such as secession and subversion, under
Article 23 of the Basic Law. We hope that the SARG will proceed
with caution on these matters and seek to form a public consensus
on the best way forward through public consultation. Chairman,
the Government will continue to follow closely these and all issues
relevant to the implementation of the Joint Declaration. Only
through proper implementation of this agreement can UK-China relations
achieve their full potential. We give credit where credit is due
but where we have concerns we shall say so, and follow these up
with the SARG and with the Chinese side of the Joint Liaison Group.
We believe that is our duty and that is what Hong Kong people
expect of us. I hope too that the Committee will continue to take
a close interest in our efforts and in the affairs of Hong Kong.
2. Minister, thank you very much. I can
certainly give you the assurance that the Committee proposes to
take a continuing interest in Hong Kong. Minister, if matters
had been different, if the concept of one country two systems
had been undermined, if there were clear evidence of breaches
of press freedom, what could we do about it realistically? What
leverage do we in the United Kingdom have following the handover?
(Mr Fatchett) Let me just say, as you realise
from my opening statement, your assumptions are not ones that
we would share in practice. Therefore we are dealing with a totally
hypothetical situation.
3. Yes.
(Mr Fatchett) The leverages are, I guess, Donald,
two. First of all, the Joint Declaration is a Treaty, it is between
the United Kingdom and China and therefore rights, responsibilities
and duties are developed under that Treaty. Therefore we would
seek to implement that Treaty and if there is a violation of that,
that will be the one area of leverage that we have. I have always
felt that the most important leverage in Hong Kong is not the
legalistic, it is the second leverage that exists and that is
international opinion and interest in Hong Kong. There is no doubt
in my mind, and I am sure you saw this in your own experience
there, that Hong Kong itself generates quite wide debate, a lot
of opinion, but also there is a tremendous international interest
in what goes on in Hong Kong, not just because of its economic
importance but also because of its unique political nature. This
is the first time we have had a country that is one country, two
systems. Just to see how that experiment works out is going to
maintain a political fascination over the years. I think the second
leverage is the jury of international public opinion. I think
that is a very strong jury and maybe it is the most powerful jury
that exists in this context. One of the reasons that China is
so keen to follow the commitments under the Joint Declaration
is that it wants a positive verdict from that international jury.
If I can just say that that bounces on in another direction because
there is a keen Chinese interest in Taiwan and the development
of the relationship with Taiwan. I was at the ceremony on 1 July
and I remember Jiang Zemin talking about the relevance of the
one country, two systems model for China's future relationship
with Taiwan. If that is really going to be a positive relationship
looked at from the eyes of Beijing then it does seem to me that
the Joint Declaration and international public opinion have both
got to be satisfied.
4. Leaving the jury of international public
opinion aside for a moment, there are the Treaty obligations under
the Joint Declaration. Although expressing satisfaction with the
big picture concern was expressed about details, in what way,
therefore, in practice has Her Majesty's Government been able
to exercise leverage over the Chinese?
(Mr Fatchett) We have two mechanisms again. We
have the Joint Liaison Group which continues in existence and
gives us the vehicle to express our concerns and anxieties about
the way in which the Joint Declaration is being implemented. If
we feel that is appropriate we take that opportunity. We also
have again, playing back into the international opinion, the mechanism
of the report that we provide here to the House of Commons because
that is an important way of attracting interest in what is going
on in Hong Kong and flagging up our concerns. Those concerns you
will have seen in the Six-Monthly Report and those are concerns
that we will continue to express if there is a need to do so.
Sir John Stanley
5. Minister, you said in your opening statement
that the Chinese Premier had intervened to resist the introduction
of any controls over Hong Kong radio and television. In reply
just now to our Chairman's question you suggested that any introduction
of censorship of the media in any form was entirely theoretical.
Against that background, how do you explain the reports that have
appeared in the press that the Chief Executive of Hong Kong, C
H Tung, is considering issuing guidelines "to the Hong Kong
radio and television"?
(Mr Fatchett) I want to look at the nature of
the reports first of all without commenting on the nature of those
reports. Let me say that in general principle what I think is
important for Hong Kong and its development and the relationships
not just with the UK but the internal relationships is to maintain
the basic freedoms, including the press freedoms, that have previously
existed. Whilst I cannot comment on whether C H Tung is going
to bring forward any guidelines, let me say if I was in a position
to offer advice to him, my advice would be very strongly not to
do so because in any way that appears restrictive I think will
undermine Hong Kong's freedom and its sense of confidence. One
of the points that I think all of us made in the run up to the
handover last year was that Hong Kong's economic success has been
dependent upon a number of factors, one of which has been its
respect for openness, public freedom, the freedom of expression.
I think those are intimately linked and we need to ensure that
they maintain that link, that will enable us to preserve the integrity
of the freedom of speech and the freedom of expression.
6. Leaving aside the advice you might give
to C H Tung, which I suggest probably he is unlikely to ask for,
would you agree that the introduction of government guidelines
in Hong Kong to Hong Kong radio and television would be a breach
of the Joint Declaration?
(Mr Fatchett) I am not sure whether it would be
a breach of the Joint Declaration but certainly I would agree
with you, John, that it would be a step we would disagree with.
Mr Illsley
7. Did any particularly significant issues
arise from the 42nd meeting of the Joint Liaison Group which took
place in March of this year? Could you give us an idea of what
are the prospects for the next meeting of that body?
(Mr Fatchett) Can I preface my comment by taking
this opportunity—and I hope you do not mind me doing this,
Eric—to thank the civil servants who have been involved
in the Joint Liaison Group over the years: Hugh Davies, who was
responsible for the British side of the Joint Liaison Group in
the period up to the handover, which we all know was an extremely
difficult period and I think he handled that task with great skill
and great responsibility, and Alan Paul who now has the responsibility
to lead the British side of the Joint Liaison Group in different
circumstances. Both of them have performed very effectively in
maintaining and securing Britain's role and Britain's interest.
The key issue I would say of the 42nd meeting of the Joint Liaison
Group was our concerns about the election process, the discussions
about the election process, the discussion of the elections, the
details of those and looking forward to those taking place on
May 24. There are other more detailed items but that is very much
the most important single issue. If I can also say this: we are
determined to keep the Joint Liaison Group going. I said in my
opening statement that we have a responsibility to do so and we
will continue to work hard to achieve that objective.
8. You did mention that it was one of the
levers that the British Government could use to express concerns
and anxieties as you mentioned, but do the Chinese take the view
that the role of the JLG is largely spent?
(Mr Fatchett) I think it is probably fair to say
that perspectives changed on July 1. The Chinese interest prior
to July 1 was more committed and more detailed to the JLG than
it was maybe after July 1. It is our task to remind the Chinese
that under the Joint Declaration there is a continuing joint responsibility
and the Joint Liaison Group is part of carrying through that joint
responsibility. I can certainly assure you, Eric, we will continue
to remind them of that and to continue to ensure that the JLG
has an agenda and works to it.
Chairman: Minister,
I would like now to turn to constitutional matters and Sir Peter
Emery.
Sir Peter Emery
9. You have answered, Minister, certain
of the aspects about the SARG and the high degree of autonomy
and you have made it clear that you consider that still exists.
Can I therefore go to the constitutional matter, which many of
the lobbyists were approaching this on, which of course was the
sweeping away of LegCo and the introduction of the Provisional
Council. Two questions therefore arise. Do you consider that the
pieces of legislation and regulation arising from PRC are legitimate
and do they fit in with the general concept of the Joint Declaration?
Secondly, what was being said to me, and I think to us as a Committee,
was that having swept the LegCo away, the Chinese made it quite
clear during the Patten negotiations that this was really unacceptable
to them. They have now gone for a constitutional structure, for
which elections have already taken place or begun to take place.
It is suggested those are exactly the same as those negotiated
by the then Foreign Secretary, Mr Hurd, prior to the Patten restructuring
of LegCo. Is that a statement which you can accept or is it not?
(Mr Fatchett) Peter, you have a number of questions
in one.
10. You know me of old, Derek, you would
not have expected otherwise.
(Mr Fatchett) There are a few bites of the cherry
there. Let me, first of all, express our total opposition to the
Provisional Legislature. We always argued, as indeed did the previous
government in the UK, that there was no need for derailing the
through train. All the experience I think since July 1 indicates
that our assessment was correct, there would have been great confidence
within the system if in fact the through train had not been derailed,
it would have avoided many of the arguments that we have had subsequently
from July 1. The Provisional Legislature, if I can speak very
frankly in my assessment, has been of no credit in any sense to
China, the through train would have been a much better option.
That is hindsight but that is the position we took and it is the
position the previous UK Government took and one that we supported
in opposition. As for the validity of the laws passed by the Provisional
Legislature, you will know, Peter, there was a case that went
to the Hong Kong courts in July of last year which upheld the
legality of that legislative process. We will not question that,
that was a decision made by the Hong Kong courts. I think our
judgment, if you like, is a political and moral judgment and not
a legal judgment. We feel that it would have been more appropriate
to continue with the through train but we do accept that the Hong
Kong courts have said that the Provisional Legislature is able
to pass valid legislation and they have made that decision. As
for the elections and the background and the history of the Patten
and other negotiations, as you know constitutionally we have certain
difficulties as a Government in this. We have not had access to
all of these papers because we are not able to do so, so we are
not in a position to make that sort of judgment as to tactics.
My view is that that is history in as far as we are now concerned
with our relationship with China and the people of Hong Kong.
There is little merit in going back over those issues because
we are always debating hypothetically what might have been, what
should have been, what decisions people should have taken at a
certain time. There is a great deal of seminar fun in that approach
but there is no great political merit. We have to live with the
regime and the election system that we have got. I think our longer
term political objective, Peter, is to ensure that the commitment
to a universal franchise is the one that is carried out. That
is what I really accept as our objective, to encourage the internal
political development so that there is an achievement of the universal
franchise. That means we do not need to look back, we need to
look forward, and that should be our objective.
11. I am interested in what you have said
because it greatly argues that some of the positions the lobbyists
are taking are, in fact, history and we must look forward and
not backwards about this. May I ask, therefore, does the Government
consider that the present set of elections is moving in the direction
of universal suffrage and what factors have you to support the
view that you hope this is happening and if it is what you hope,
by what sort of dates?
(Mr Fatchett) The election process, as I said
in my opening statement, is consistent with the Joint Declaration.
The fact that the elections are taking place is positive. If you
think back 12 months ago, Peter, there were those who were writing
columns here and in Hong Kong saying that the elections would
never take place after 1 July 1997. Those elections are now taking
place. They are not the elections we had wished and I set out
the reasons for that earlier. The restructuring in the franchise
is something for instance to which we are opposed. Those elections
are taking place. You then make a judgment as to the pace of progress.
For all of us coming from a Westminster democratic system, the
principle of universal franchise is one we readily accept, live
by, prosper by or whatever in political terms. My assessment of
the situation in Hong Kong is that the values of democracy are
extremely strong and pressures towards democracy are strong and
those will continue to grow in my view. Whether we are going to
achieve the universal franchise on the dot of the year 2007 is
a question that remains open to debate but I will say, I think
with confidence, that the people of Hong Kong will move towards
greater and greater democratic expectations. That is in the nature
of Hong Kong society and I am not sure that you can reverse that
in a way that will get rid of those pressures and certainly we
would not want to see any such reversal.
12. Lastly then, the other side to the coin;
you have not seen any statements from Chinese authorities or from
the Chief Executive that would lead you to suppose that that movement
towards 2005 or 2007 is not still a possibility?
(Mr Fatchett) No statements at all to lead to
a negative conclusion. We would certainly wish to encourage a
more positive approach and the opportunity of achieving the objective
by 2007, but no statement as yet anywhere to suggest a negative
conclusion.
Chairman: Before continuing
with the more constitutional elements, I would like Mr Illsley
to look at the New China News Agency.
Mr Illsley
13. Is the Government satisfied as to the
role of the New China News Agency? Do you give any credence to
the suggestion that there could be surveillance activities being
carried out by the Agency and is there any evidence to suggest
that?
(Mr Fatchett) I am not sure that we are in a position
to make a judgment about satisfaction as we do not establish the
yardsticks against which that judgment can be made. What I will
say to you is that we think it is very important, as I said in
the opening statement, that the role of the New China News Agency
should be clearly and unambiguously defined. I think the concern
we share with very many people in Hong Kong is that role is not
clearly and unambiguously defined. This is certainly a direction
in which we would encourage the Hong Kong Special Administrative
Region to go so there is a much clearer definition of the role
being played by the New China News Agency. As for its surveillance
activities, we hear this rumour, we understand the concerns that
are expressed by individuals. I have to say, Eric, that we have
no evidence to support the contention that the New China News
Agency is involved in surveillance activities.
14. The Agency recently committed what the
Hong Kong SAR Government and the prosecuting authorities regarded
as a technical breach of the Personal Data Privacy Ordinance in
respect of the release of Emily Lau's files. How seriously does
our Government regard that technical breach and do you have any
views on the failure of the Government to prosecute the Agency?
(Mr Fatchett) It was, as you quite rightly say,
only a technical breach. They failed to reply to the request within
the 40 days set out in the statutory provisions. Whether there
were other motives involved in the delay in replying is a judgment
that one has to make. Can I say that it is not the only non-prosecution
decision taken by the SAR Government. I think we have record of
another eight similar cases, eight cases of non-prosecution decisions
being taken. We do understand the concerns about cases such as
this, they obviously raise a high profile. If I can say whether
it is on the technicalities of this, it is on the politics of
this, that openness is a very good thing for a government, whether
it is in Hong Kong or in the United Kingdom, it is a principle
we should applaud.
15. Are the eight other cases you cite ones
in which the Government of the People's Republic or their agents
were involved?
(Mr Fatchett) I think the answer to that is no.
There is a high interest, quite rightly so, in the New China News
Agency and indeed Emily Lau is a very high profile political activist
in the context of Hong Kong.
16. Is the Personal Data Privacy legislation
secure? Have you any idea how many prosecutions have been made
under that legislation?
(Mr Fatchett) I do not think we have the answer
to that, Eric. We feel that the legislation is secure and we would
certainly encourage the security of the legislation and the need
for openness in government. I cannot give you the factual information
and I do not think officials have it either.
Mr Wilshire
17. Chairman, can I just pursue that with
a very quick supplementary question. In respect of this particular
case with Emily Lau did the British Government actually make representations
to the Chinese Government about what had actually happened?
(Mr Fatchett) The answer is no. If we were going
to complain I think it would be more appropriate in one country,
to complain to the Hong Kong SAR rather than to China. If I can
just get you to think through the point, David, that we are trying
to maintain as much autonomy for Hong Kong as possible.
18. Did you complain to the Hong Kong authorities?
(Mr Fatchett) Let me just make my point. I think
it is important that we do differentiate between Beijing and Hong
Kong in this context. If we were going to make a complaint it
would be to Hong Kong. I think we have to say that prosecution
policy has to be the responsibility of the SAR and it is not our
job to second-guess that prosecution policy.
Ms Abbott
19. Just to go back to the legislation passed
by the elected LegCo, how many bills were in fact passed by the
Provisional LegCo prior to its dissolution? Does the Government
regard this legislation as valid?
(Mr Fatchett) The second part of your question
I have already answered, Diane, and that is that the validity
of the legislation by the Provisional Legislature was determined
by the Hong Kong court in July of last year. It held that the
legislation was valid and applicable in the context of the Special
Administrative Region. Again, I go back to my point to David,
it is not our responsibility to second-guess the Hong Kong courts.
Our point throughout, that it is valid in terms of the decision
taken by the court, was that it was wrong in terms of the politics
to derail the through train. Our very strong preference throughout
was that the through train should go through and that the Legislative
Council that had been elected in 1995 should continue with its
responsibilities. That is a political judgment and not a legal
judgment. The legal judgment goes to the validity. I think the
political judgment raises questions about the wisdom of the decision
to suspend the Legislative Council.
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