CONFIDENTIAL
4
MDHOAN 1275
POLITICAL FORM. FURTHERMORE IT IS BASED ON THE ESTABLISHED HUMAN RIGHTS CHARTER IN ANOTHER WESTERN DEMOCRACY WITH A COMMON LAW
SYSTEM.
6. FROM THE POINT OF VIEW OF THE CHINESE WE DO NOT BELIEVE IT SHOULD PRESENT ANY ADDITIONAL DIFFICULITES. THE EFFECT OF OUR NEW CLAUSE 4 IS NOT FULL ENTRENCHMENT: IT IS MERELY TO ALTER THE CONVENTIONAL RULES OF STATUTORY INTERPRETATION IE THE DOCTRINE OF IMPLIED REPEAL. SINCE THIS HAS ALREADY BEEN DONE BY SECTION 2(4) OF THE ECA THIS PRESENTS NO LEGAL NOVELTY AS FAR AS ENGLISH LAW IS CONCERNED. NO QUOTE SUPERIOR UNQUOTE LAW IS CREATED, AND NOR WOULD ANY SPECIAL LEGISLATIVE PROCEDURE BE REQUIRED TO OVER-RIDE THE BILL OF RIGHTS (OTHER THAN THE INCLUSION OF A DECLARATION IN THE TEXT OF THE NEW ENACTMENT). THIS FORMULA WOULD NOT GIVE THE BILL OF RIGHTS CONSTITUTIONAL STATUS SINCE ITS COMPLETE REPEAL COULD BE ACHIEVED BY AN ORDINARY ORDINANCE (UNLIKE THE CANADIAN CHARTER, WHICH DOES REQUIRE CONSTITUTIONAL AMENDMENT). 7. MIFT ALSO INCLUDES THREE ADDITIONAL SUB-CLAUSES (4 5 AND 6) WHICH WOULD FURTHER STRENGTHEN THE SAFEGUARDS BY REQUIRING LEGCO TO REVIEW PERIODICALLY ANY OVER-RIDE DECLARATIONS MADE. IN OUR VIEW THE TEXT WOULD BE IMPROVED BY THEIR INCLUSION BUT THEY COULD
BE OMITTED WITHOUT AFFECTING SUB-CLAUSES 1, 2 AND 3.
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8 PLEASE NOTE THAT WE HAVE NOT SOUGHT TO DEAL WITH SUBSIDUARY LEGISLATION IN THE FORMULA IN MIFT. IF OUR FORMULA IS HELPFUL TO YOU, YOU MAY WISH TO CONSIDER WHETHER AND HOW IT MIGHT BE REWORDED TO COVER SUBSIDIARY LEGISLATION.
HURD
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59
DISTRIBUTION
62
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.(RESTRICTED)
LIMITED
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RESEARCH (FE)
PUSD
NEWS D
PS/MR MAUDE
PS/LORD BRABAZON
MR GILLMORE
MR MCLAREN
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ADDITIONAL
3
MR WHOMERSLEY LEGAL ADV
MS BARRETT LEGAL ADV
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CONFIDENTIAL