Examination of witnesses (Questions 40
- 59)
TUESDAY 28 APRIL 1998
MR DEREK
FATCHETT, MP,
MR GRAHAM
FRY and MR
STEPHEN LILLIE
Sir Peter Emery
40. Can I come back on that very legalistic
point. If one is dealing with the democratic mandate is it not
correct that Article 45 of legislation passed by the National
People's Congress makes it absolutely clear that the ultimate
aim is the selection of a Chief Executive by universal suffrage
and Article 68 says that the ultimate aim is the election of all
members of the Legislative Council by universal suffrage. That
is part of the Basic Law which was agreed to by the Chinese, if
you like Communist, People's Congress, and it is the very basis
on which the operation of law and of Basic Law is in Hong Kong
at the moment. Surely that should have been taken as an encouraging
factor rather than a discouraging factor? I want to suggest to
you that really one should be somewhat surprised at the minimum
of interference that there appears to be from China in the Government
of Hong Kong at the moment. Let us hope that continues. I think
at least we would have to admit that is the position at the moment.
(Mr Fatchett) Peter, I see no contradiction in
the very accurately stated position that you have just set out
and the points that John made in his question. It may well be
that the current Chief Executive does not see himself as being
re-elected into his position by a process of universal franchise.
You are absolutely right in saying that is an objective that is
set out there and you clearly quote from the relevant provisions,
that the ultimate objective is that the Chief Executive will be
elected by universal franchise. That would start to change the
nature of government to which Andrew referred. Once you have achieved
that objective it does not then create a Westminster model, it
creates the United States model of having a chief executive, like
the President, who is elected by universal franchise with hopefully
a legislative body running alongside that. Let me just say to
you on your final point, yes indeed the tone of my opening statement
was that we ought to look at the positives. There is always a
danger of looking for that part of the glass that is empty rather
than that part of the glass that is full. The positives are that
on the whole our assessment is that China has not interfered in
the day-to-day business of the SAR, nor has it interfered in what
has been the biggest decision that the SAR has had to take in
terms of its financial and economic policy. All the evidence that
we have on the defence of the dollar peg, on the budget, is that
there is no Chinese/Beijing interference. I think we ought to
be positive about that and say that is something looking on, what
is it, ten months of experience of the SAR we can look at very
positively.
Ms Abbott
41. I am sorry to intervene in the symphony
of agreement between yourself and Sir Peter. I want to ask one
final point about the move towards democracy. Firstly, you made
the point that Chris Patten was always very nervous and took the
Provisional Legislature very seriously. I put it to you, I put
it to the Committee if you like, that Chris Patten came from a
democratic tradition and even though he was an appointed Governor
he knew at the end of the day he had some accountability to democratic
politics in the UK. I believe the current Chief Executive is already
in a different position. The final point I want to put to you
is this: while we were out there there were the district sub-sector
elections to the Election Committee and there was a turn out of
only 23 per cent. One of the things that dismays me about the
proposed election system, and you have said it is not perfect,
is that it actually, as colleagues have said, represents a backwards
step in terms of universal suffrage and it is also so complex
that you are getting these very low turn outs. This is no way
to progress towards universal suffrage, imposing a system that
is far more complex than anything we have in the UK. We have seen
already that in the elections, although we know they are committed
to universal suffrage, they are getting very low turn outs. Does
that not concern you?
(Mr Fatchett) Low turn outs concern me wherever
they take place.
42. I would imagine so.
(Mr Fatchett) Indeed, we have to be careful in
terms of quoting figures because I suspect within ten days in
the UK we may well have local government election turn outs that
are not much higher than some of the figures you have quoted.
We do have to be careful in that in terms of principle. What you
may be encouraged by, Diane, is to know that yesterday 167 candidates
came forward to contest the 60 seats. That in itself, I think,
is a sign of encouragement. The fact that you have a range of
political views there is also encouraging. That again is something
we ought to see as a positive development.
43. You said earlier that despite the reservations
of some of us about the progress towards universal suffrage, at
the end of the day the Government of Hong Kong is subject to the
rule of law and that is another key theme of this inquiry. I want
to ask you how confident are you that it will be possible to draft
a law of sedition, as required by Article 23, that will be compatible
both with the common law but also with the human rights obligations?
(Mr Fatchett) Fully confident.
44. Are you confident that that is going
to happen?
(Mr Fatchett) It has already happened of course,
as you know, because it happened under the previous Legislative
Council. There was a draft law that was fully consistent with
the Basic Law which would have achieved those objectives.
45. That was the Legislative Council that
Beijing kicked out. We are talking about, as you like to put it,
now and not in the past.
(Mr Fatchett) Let me just explain the background
to you. The law was drafted, it met the Basic Law requirements.
It was subject to amendment as it went through the Legislative
Council. If it had not been subjected to amendment then it may
well have been in position and covered all the Basic Law objectives
and met the points that we seek to meet. It can logically be achieved.
What we would say on the Basic Law is that there needs to be full,
wide consultation. This is an extremely sensitive area. It is
good that this law is not going to be discussed, debated and enacted
until the Legislative Council elections have taken place. That
will make sure that, however imperfect, there will be a democratic
input into the process. We will certainly hold up the model of
what was there previously as the way to make progress in the future.
Ms Abbott: One of
the aspects of the rule of law which was arousing concerns when
we were in Hong Kong is the Adaptation of Laws Ordinance. Obviously
we have received a lot of evidence on that. The Department of
Justice, which was very able and fluently represented by the Solicitor
General if I remember correctly, said that it was nothing more
than a technicality but the democratic politicians and the lawyers
and the barristers that we met said that it would provide huge
amenities for Chinese state organs. The Ordinance has now passed
the Provisional LegCo. Does Her Majesty's Government consider
that Ordinance to be a threat to the rule of law in Hong Kong?
Mr Illsley
46. Can I just add to that. One of the agencies
that it was thought might be covered by the Ordinance was the
New China News Agency.
(Mr Fatchett) Indeed, and very much the New China
News Agency is the focus of the debate on this legislation. The
Hong Kong Special Administrative Region's view, including of people
for whom we have a great deal of respect for their personal integrity
and who we know very well from the previous administration, is
that this is a technical matter. The view of others, we understand,
is that this is not just a technical area but it opens up real
concerns about political freedoms and the definition of those
under the legislation. This I think takes us back not so much
to a technical argument about the nature of that legislation but
I think the point that Eric has quite rightly put his finger on,
and that is a very clear definition of the role of the New China
News Agency. That is the focus. The rest of it falls into position
quite well and everybody understands the technical point of changing
from Crown to state in that context.
Ms Abbott
47. The technical point is important.
(Mr Fatchett) Yes, it is of course.
48. When you talk about the rule of law
then technical points are all important and so if you do not consider
the Adaptation of Laws Ordinance in itself a threat to the rule
of Hong Kong I am anxious to get this on the record.
(Mr Fatchett) I shall now answer in the way that
I intended to answer and that is to say what I think is crucial
is to define and publicly state the role of the New China News
Agency because it is around the New China News Agency that the
concern exists. Rather than focus on the debate in that area,
and I will come back to that debate in a moment, I would urge
the Hong Kong Special Administrative Region Government and the
Government in Beijing to have a very clear statement of the role
and functions of the New China News Agency because that would
remove at a stroke, if that was a clear statement, all of the
concerns about this particular Ordinance. The only other way forward,
without getting too much into the legality of this, is that you
are almost arguing two negatives. You can only test the extent
of the immunities by having the New China News Agency or any other
body break the Hong Kong law because it can only then be tested
in court. The answer technically to your question, Diane, is for
the matter to go to court to understand the extent to which it
may potentially be a breach of the rule of law. Then you are dealing
with two negatives. One, you have almost got to ask somebody to
break the law and then, secondly, you have got to ask the Hong
Kong judges to define the areas of immunity. Politically I do
not see that as an attractive proposition. Politically what is
much more attractive is to have a clear and defined statement
on the role of the New China News Agency.
Chairman
49. Can I take you back to the sedition
point. You understand the concerns of those who say that in the
Chinese People's Republic there is a view of sedition as anti-state
activity, very different indeed from the tradition in this country
and you understand, therefore, the concern about the import of
a Chinese concept into Hong Kong in that respect?
(Mr Fatchett) I very much understand that. You
say there is a different definition of sedition from the one that
exists in the United Kingdom——
50. A rather wider ambit.
(Mr Fatchett) Also that traditionally existed
in Hong Kong as well. The strength of Hong Kong, of course, as
I have said on a number of occasions, is not just its economic
and financial strength but the values of the social structures,
the political structures, that go to underpin, support and develop
economic and financial strength. Therefore, I can very much understand
the concerns and subscribe to those concerns.
Sir John Stanley
51. Were you not concerned about the manner
in which the Adaptation of Laws (Interpretative Provisions) Ordinance
was introduced into LegCo? Were you not concerned about the timing
of that? Was it not evident that it came into LegCo without very
much awareness at all of its appearance, despite the fact that
it was extremely contentious, certainly amongst a significant
section of the democratic community in Hong Kong, and I believe
that the revelation of this Ordinance owes a great deal, if not
exclusively, to the Hong Kong press who fortunately picked it
up? Is not the fact that it appeared within a very, very short
time of the disappearance of the Provisional LegCo a matter of
concern as it was clearly being rushed through before that very
tame body was removed?
(Mr Fatchett) I think if I can say that it is
a credit to the Hong Kong press that they unearthed this in your
own analysis, John. That says a lot about Hong Kong still, that
there is that freedom to do that. That is something on which we
should applaud and congratulate those who were involved in that
and we should maintain that structure. Of course we would have
preferred these matters to be handled differently. I have said
this in my opening statement. It all flows from our political
and moral concern about the creation of the Provisional Legislature,
that if these matters had been addressed by LegCo on the through
train then I think people's concerns about the outcomes would
have been considerably less. This is hypothetical but let us say
that the outcome was the same whether it had been LegCo rather
than the Provisional Legislature, I think the body of support
in Hong Kong for it would have been much greater. That was one
of the political mistakes, apart from the morality of the issue,
that was made in derailing the Legislative Council because whatever
happens, whether this is a technical matter, as the SAR would
suggest, or whether, as the barristers suggest, this is a matter
of greater importance, I suspect the fact that it is coming from
the Provisional Legislature is something that is going to be viewed
with a degree of suspicion and cynicism by a greater percentage
of the community than would have been the case if it had been
the Legislative Council. Yes, we do have a concern that goes deep
into the roots of derailing the legislative body.
Chairman: We are trying
to follow the Joint Declaration's headings. The one now on foreign
affairs.
Sir John Stanley: Sorry,
Chairman, may I just do the last issue on extradition?
Chairman: Yes, of
course.
Sir John Stanley
52. Thank you. Minister, one of the points
that was made to us in Hong Kong, somewhat to our surprise, was
that the UK Government has so far failed to ratify the extradition
agreement between the UK and Hong Kong. Can you explain whether
that is factually correct and, if so, what is the reason for the
non-ratification?
(Mr Fatchett) I am in this great position of pulling
rabbits out of hats at the moment. I can tell you that we have
ratified the Extradition Treaty, it is now in force and, even
better, if we want to look at it in those terms, we have had our
first extradition under the Treaty. Mr Ewan Launder is now back
in Hong Kong facing 13 corruption charges. The process is in force
and is working.
53. Can you tell us what the date of ratification
was and why there was the delay?
(Mr Fatchett) It was 19 March. I think the reasons
for the delay were technical but that is now in the past and we
are working the Extradition Treaty.
Sir John Stanley: Thank
you.
Chairman
54. Minister, foreign relations. The last
Six-Monthly Report referred to so-called "grey areas"
in terms of foreign relations between the Government of Hong Kong,
the SAR, and the Government of the People's Republic. Are those
grey areas still unresolved?
(Mr Fatchett) I think in many respects, Donald,
they will remain grey and we could almost applaud the colour grey
in this context. There are some areas of SAR autonomy that we
would very much like to see continue under the Special Administrative
Region which are foreign affairs, if you like. I am thinking particularly
of the SAR's economic and financial relationships, its relationships
with other countries. It was the host in September, was it not,
of the IMF or World Bank Conference?
55. Indeed.
(Mr Fatchett) Very important. It is a grey area
but it is one that I think is very positive for Hong Kong. As
long as it operates within what we believe currently is this hands-off
approach then I think it is something we can see as a worthwhile
development and worthwhile area.
56. In terms of the relations between the
SAR Government and China there is an office of the SAR Government
in Beijing, there is Ambassador Ma's office in Hong Kong, together
with the New China News Agency, so what do you understand (1)
to be the function of the Hong Kong office in Beijing and (2)
in Hong Kong itself, what functions does our Government understand
the New China News Agency now performs?
(Mr Fatchett) In terms of the SAR office in Beijing
we probably regard it as a consulate. Its primary responsibility
will be to look after the welfare of Hong Kong citizens in China.
It will represent in that sort of way. The role of the Chinese/Beijing
bodies in Hong Kong is an area that, as we have already indicated
for instance with the New China News Agency, is one that needs
more closely to be defined. The MFA has certain responsibilities.
The area of concern for us will be the New China News Agency.
This is something we have pointed out before. It is not a grey
area in the way in which we used that in the Six-Monthly Report
but it is a grey area in terms of the definition of its role and
status. It would be to all our interests if that was cleared up.
57. What do you understand, therefore, currently
to be its role as before it was effectively a non-official embassy?
(Mr Fatchett) According to its formal statement—let
me read this out—it is "overseeing the work of certain
bodies in Hong Kong, enhancing the exchanges between the SAR and
mainland China in economic, financial, cultural and social spheres,
liaising with Hong Kong people and overseeing SAR/Taiwan relations".
It is beyond that that I think people would be concerned whether
it has responsibilities. This is a point that Eric made to me
in an earlier question about some of those responsibilities and
asked for information about that. That is why probably some greater
clarification of the role would be useful.
Chairman: I would
like now to turn to what will take the bulk of the remainder of
the session, Minister, and that is the basic rights and freedoms.
I can see that we have already covered some of that area but I
wonder if Mr Heath would open for us on that.
Mr Heath
58. Thank you, Chairman. Minister, can I
put to you an entirely subjective view, which is that there is
little or no overt interference from Beijing in these matters
within Hong Kong at present. Part of the reason for that is that
there is no need for there to be that interference, partly because
of the rigged electoral system, which we have already discussed,
but secondly because of the attitudes of the SAR Government which
has reverted to a type based on perhaps what I call the cartel
that has administered Hong Kong intermittently over many years
which is not particularly wedded to either democratic or liberal
notions of the rule of law. Although there has not been any manifestation
in broad terms of a change in the human rights apparatus there
is nevertheless an incremental change in the legislation, in Ordinance,
which, put together, means that the framework for future suppression
of human rights is being put into place, not used yet but is being
put into place. I want to ask some specific questions about Ordinances
afterwards. To what extent would you subscribe to that view?
(Mr Fatchett) I think there are two elements in
what you are saying, David. First of all, the element of self-censorship
or self-adjustment and whether that has taken place. I hear this
argument and I hear your point about the cartel that has run Hong
Kong intermittently, as you say, over a number of years. Scientifically
it is a difficult thing to prove because all we can say to you
is as far as we can see there is no Beijing interference. The
fact may well be, and we cannot prove this, that decisions are
taken so that there is a sense of what Beijing would approve but
all we can do is to give one positive rather than to make the
negative assessment. I do hear the argument and I do hear it from
a number of people and indeed it has been reported and commented
on within Hong Kong itself very extensively. As to your second
point, that is, is the structure now being chipped away and changed:
I am still confident about the robust nature of the structure.
That does not say that we have not got to be cautious. That is
one of the reasons why we have promised to bring out the Six-Monthly
Report, it is one of the reasons that I said in my opening statement
that we will be, as a Government, cautious and vigilant and use
whatever opportunities we have, if need be, to express that caution
and our causes of concern. On the whole I think there are some
good signs about the robust nature of the respect for freedoms
and the respect for the rule of law that exists in Hong Kong.
If I can just set out what I see as those positive signs. I think
the rule of law is strong. The people administering the rule of
law are people of high personal integrity and that I think is
a reassurance and an assurance for all of us. The press is still
on the whole remarkably free, able to unearth stories, as John
Stanley referred to earlier, in a way that I think is helpful
to maintain the robust nature of the structure. Political debate
is extensive in Hong Kong as we can see from the number of candidates.
As a Select Committee you had no difficulty in finding contrary
views held by people within Hong Kong, you were met by a whole
range of views. I think there are a lot of positives to suggest
that the robust nature of the structure is still there. Our task,
and you are quite right to point this out, is that we have to
be cautious and vigilant about certain changes that may chip away
at the robustness of the structure.
59. I am grateful to you for that positive
response. Can I perhaps dwell inevitably on the negative. I want
to address three separate points. It is probably easier to put
them separately to you. The first is in respect of the Public
Order Ordinance. Do you have any concerns that that Ordinance
has reduced the scope of the right of assembly? Have you had any
reports which give substance to the view which was certainly expressed
to us when we were in Hong Kong that the police presence on occasions
of demonstration or political assembly is becoming more intimidatory
and threatening and rather more robust than it had previously
been and that is applying some sort of pressure to the rights
of democracy?
(Mr Fatchett) Technically we have had some concerns
about the Public Order Ordinance and the extent to which it can
potentially restrict the freedom of speech and freedom of demonstration.
The fact is that so far there is no evidence to support that.
So far there is no evidence of restriction in the way in which
some people feared. Again, I think that underlines and emphasises
the point that we have to be cautious and vigilant because we
may be chipping away at the robust nature of the structure. The
structure, I think, on public demonstrations, public expression
of opinion, is still there and still in place. As for policing
tactics, again we have heard the criticism of that. Our judgment
is that on the whole there has not been a change in policing tactics
but again this is an area that we will say in our report and to
the Committee we will keep an eye on because it is an important
part of the freedom of expression in Hong Kong.
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