CONFIDENTIAL
30
041120-
MDHOAN 1583
HKD 241
RECEIVES IN REGISTRY
20 FED 1990 TOP COPY
REGY DIST?
DESK OFFICE
INDEX
Action Taken
CONFIDENTIAL
FM FCO
TO DESKBY 230030Z HONG KONG-
TELNO 205
OF 22172OZ JANUARY 90
INFO IMMEDIATE UKREP JLG HONG KONG
29
YOUR TELNO 282: BILL OF RIGHTS
1. FIFOOT HAD THE OPPORTUNITY TO DISCUSS THIS ISSUE BRIEFLY WITH STOCK ON 20 JANUARY. WE HAVE NOW EXAMINED YOUR REDRAFTED EXCO PAPER. IT IS FOR YOU TO DECIDE WHICH OPTION YOU RECOMMEND TO EXCO. BUT YOU MAY LIKE TO CONSIDER THE POINTS BELOW, IN PARTICULAR THE LEGAL ARGUMENTS.
2.
WE CONSIDER YOUR NEW INTERPRETATION CLAUSE AN IMPROVEMENT. BUT THE PROCEDURE STILL RELIES ON THE AG'S CERTIFICATION TO GUARD AGAINST THE INADVERTANT ENACTMENT OF LEGISLATION CONFLICTING WITH THE BILL OF RIGHTS. WE HAVE RESERVATIONS ABOUT THIS FOR TWO REASONS: IS IT REALLY POSSIBLE OR PRACTICABLE TO IMPOSE UPON THE AG THE TASK OF DEVOTING HIS MIND TO EVERY RAMIFICATION OF EVERY BILL AND CERTIFYING IT FOR THE PURPOSES OF THE CLAUSE?. SECONDLY, THE AG IS ONLY GIVING A VIEW. IF IT LATER BECAME CLEAR IN THE CONTEXT OF A CASE THAT A PIECE OF LEGISLATION CONFLICTED WITH THE BILL (BUT THE AG HAD CERTIFIED OTHERWISE), YOUR INTERPRETATION CLAUSE WOULD NOT APPLY AND VALID LEGISLATION CONFLICTING WITH THE BILL WOULD HAVE BEEN PASSED (PROBABLY CONTRARY TO LEGCO'S INTENTIONS).
3. CONCERNING OUR PROPOSAL IN MY TELNO 171 (WHICH SEEMS TO EQUATE TO OPTION 4 (II) IN THE EXCO MEMORANDUM) WE CANNOT AGREE WITH YOUR LEGAL ARGUMENTS AGAINST IT IN PARA 6. WE BELIEVE OUR PROPOSAL IS CLEARLY NOT A MANNER AND FORM REQUIREMENT. CONFLICTING PROVISIONS IN FUTURE LEGISLATION WOULD, IN THE ABSENCE OF AN EXPRESS DEROGATION CLAUSE, NOT BE APPLIED BY THE COURTS. THE EFFECT WOULD NOT/NOT BE TO FETTER A FUTURE LEGISLATURE: IT WOULD BE OPEN TO LEGCO ALWAYS TO GIVE AN EXPRESS DEROGATION OR INDEED TO REPEAL THE BILL OF RIGHTS.
4. NONETHELESS WE CAN SUGGEST A MODIFICATION OF OUR PROPOSAL WHICH MAKES IT EVEN MORE DIFFICULT TO MAINTAIN THAT THERE IS A FETTER. THE CLAUSE DOES NO MORE THAN ALTER AN INTERPRETIVE RULE AS TO IMPLIED REPEAL AND INDICATE THAT THE RULE WILL PREVAIL IF THE LEGISLATURE SPECIFICALLY SAYS SO. WE SEE NOT RESTRICTION ON SUCH A PROVISION IN SECTION 5 OF THE COLONIAL LAWS VALIDITY ACT. THE FORM AND MANNER OF A FUTURE ORDINANCE, IN EFFECT REINSTATING THE DOCTRINE OF IMPLIED REPEAL, WOULD BE THE SAME AS ANY OTHER
PAGE
1
CONFIDENTIAL