I, too, welcome the debate as an opportunity to express our continuing commitment to a stable future for Hong Kong and to trying to make a contribution towards that. I, too, apologise for the fact that I shall have to leave before the end of the debate to attend a constituency surgery in the north of England.
The hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) referred briefly to the Vietnamese refugees. The Hong Kong Government had no alternative to the action that they took in introducing screening. The number of arrivals was rising fast and departures for permanent resettlement were falling. Most of those coming in were economic migrants. Those who qualify under the 1951 United Nations convention relating to the status of refugees will still receive asylum, but it is important that arrangements are made with the Vietnamese Government for those who are screened out of Hong Kong to be taken back under fully acceptable conditions that guarantee their right to return to their homes and resume work. I appreciate that that is easier said than done, and I know that our good wishes and encouragement go to those in the British and Hong Kong Governments who are seeking to achieve that.
In the meantime, the international community and the United Nations High Commissioner for Refugees must find a way to solve the international problem of the 16,000 Vietnamese refugees awaiting resettlement in Hong Kong. It cannot be left to Hong Kong. Now that measures have been taken to stem the flow of economic migrants, I appeal again to the Government to redouble their efforts to secure the permanent resettlement of the Vietnamese refugees in Hong Kong and, if necessary, adding to our quota in Britain as a catalyst in that process.
Hong Kong is very important to China in two ways: first, as a symbol of national unity; and, secondly, because of its people, their skills and the unique climate of enterprise that they have built. There are other ports on the China coast, but there is not, and never can be, one like Hong Kong. If that climate evaporates, although China will have achieved a measure of national reunification, it will have been at a very high cost. The current brain drain of people who are worried about Hong Kong's future and their children's propects is understandable, but it would be a tragedy if it were eventually to debilitate the genius of Hong Kong. As my right hon. and learned Friend emphasised, the perception of the people of Hong Kong of the Basic Law is crucial to confidence in Hong Kong and, therefore, to Hong Kong's future.
The joint declaration and the maintenance of confidence in the Hong Kong economy represent a massive achievement that few would have dared to predict. The promulgation of the draft Basic Law has been another important step, I join in the tributes that have been paid by both Front-Bench spokesmen to the openness of the consultation procedure, as arranged by the People's Republic of China. I believe that in order to achieve the conditions and confidence necessary for the future stability and prosperity of Hong Kong substantial changes will prove to be necessary in the Basic Law. That is a matter for the People's Republic of China in consultation with the people of Hong Kong. This debate represents an opportunity for those of us who regard ourselves as friends of China and Hong Kong to offer suggestions, in the hope that they may be helpful.
It is tempting to say that to quibble with the fine print of the draft Basic Law is mere legal pettifogging. On the one hand, no country in the world is constrained by its constitution if powerful forces will otherwise. On the other, some countries live happily enough without any formal constitution. We must put our faith for the future in the pragmatism of the parties.
I fear that such an attitude does not quite meet the case in Hong Kong. The future of Hong Kong will depend on the will of the People's Republic of China and the people of Hong Kong to make the experiment of one country and two systems work. That may from time to time involve sacrificing cherished beliefs and turning a blind eye to unpalatable factors. Such is the nature of a variation in sovereignty. I do not think that the necessary climate of competence to enable Hong Kong to flourish will continue to be a reality unless a number of changes are made to the draft Basic Law. Such change is implicit in the expression "draft" in the title and inherent in the consultation process.
Convention and good faith, international and internal, are obviously essential at every stage of such a unique constitutional amalgam of two wholly disparate legal systems. It must be said that good faith and good will have been present in abundance hitherto, and I have no doubt that they will be in the future. The task of future generations in the special autonomous region will be greatly eased by facing and ironing out as many potential difficulties as possible now and prescribing mechanisms for their resolution in the future.
What can be done to meet the concerns of the people of Hong Kong, which have already been referred to in the debate? Many people in Hong Kong have said that the draft Basic Law is in some ways incompatible with the joint declaration—the first Government of the special autonomous region, the interpretation of the Basic Law, the jurisdiction of the Hong Kong courts, the application of laws made by the Beijing authorities to the SAR, the review of the validity of SAR law and the protection of civil liberties. That the joint declaration may in some respects be incompatible with the constitution of the People's Republic of China is not surprising. After all, article 5 of the Chinese constitution provides expressly that no laws or administrative or local rules may contravene the constitution, which in articles 1 and 6 to 10 enshrine the Socialist nature of the Chinese state.
Article 31 of the constitution authorises the establishment of special administrative regions and the making of laws for them, but is silent on whether such laws or administrative or local rules may contravene the constitution. However, the provision in article 17 of the draft Basic Law—that laws enacted by the National People's Congress or its Standing Committee will not be applied in the Hong Kong special administrative region except in the stipulated cases—fetters the sovereign legislative power of the NPC in a way that may stand the test of time better if an arbitral body is agreed for the resolution of constitutional disputes. It could be, although not necessarily, along the lines suggested by Professor Wade in the paper mentioned by the hon. Member for Inverness, Nairn and Lochaber.
Questions over which such a body might have jurisdiction could include whether a law passed by the Hong Kong legislature was in conflict with the Basic Law; whether a law passed by the NPC or its Standing Committee was genuinely restricted to matters of defence, sovereign affairs, national unity and territorial integrity; what is the correct interpretation of the disputed provision of the basic law; and whether an amendment of the Basic Law made by the NPC was contrary to the established basic policies as set out in the joint declaration. Those are important questions connected with sovereignty.
Models for such a court or arbitral tribunal are found elsewhere in the world. They point to such a tribunal being composed of three Chinese judges, three Hong Kong judges—not, three British judges, as suggested by Professor Wade—and a president from a third country appointed by agreement from both sides. Such an arrangement might be viewed as a derogation from the powers envisaged by the PRC and the SAR, but might prove a helpful mechanism, certainly in the early period of operating the two systems together.
The joint declaration says much about the division of responsibilities after 1997, but nothing about who will have the last word when the inevitable demarcation disputes arise. It would be helpful, although I concede very difficult, if the Basic Law drafting committee could remedy that defect.
We cannot bind our successors. We would not like it if our predecessors had tried to bind us. The same is true in Hong Kong, but there is a great need to build the foundations as securely as possible.
Our impoverished convention in British politics, when it does not suit us to be wholly explicit, is to make coded references, usually to Disraeli. China has a much richer tradition of short poems. I shall leave the House with a few lines by Wu Ti, the emperor of the Liang dynasty from 464 AD to 549 AD, translated in 1918 by Arthur Waley as"The Liberator—A Political Allegory". It reads:
In the high trees—many doleful winds:
The ocean waters—lashed into waves.
If the sharp sword be not in your hand,
How can you hope your friends will remain many?
Do you not see that sparrow on the fence?
Seeing the hawk it casts itself into the snare.
The fowler to catch the sparrow is delighted;
The young man to see the sparrow is grieved.
He takes his sword and cuts through the netting:
The yellow sparrow flies away, away.
Away, away, up to the blue sky
And down again to thank the young man.
The sparrow is Hong Kong. The hawk is political failure. The fowler is "I told you so." The snare is resignation. The blue sky is stability and prosperity. The young man is the Basic Law drafting committee.