Select Committee on Foreign Affairs Minutes of Evidence


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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