HKD241
RECEIVED IN REGISTRY
21 FEB 1990
DESK OFFICE
INDEX
Mr McLaren
'se
CONFIDENTIAL
From:
P A Major
Date: 12 January 1990
A R Paul
CC:
で
াপ
HONG KONG BILL OF RIGHTS
24
1. We discussed Hong Kong telno 138 recording ExCo's decision on
the Bill of Rights. I have sent a telegram to Hong Kong asking for
a sight in good time of any revised draft bills and draft ExCo
memorandum and offering services of our Legal Advisers concerning
options for entrenchment in a common law jurisdiction.-
You may be interested in the following summary of the legal
position concerning entrenchment. There are two types:
2.
(a)
Full entrenchment: this prevents a future legislature
amending or repealing legislation at all or requires special
procedures to do so (eg two-thirds majority vote, two passes
through legislature, a referendum etc). Full entrenchment is
unprecedented in the UK. There is academic debate as to
whether it could be done. One strand of opinion is that
attempts would fail because courts would decide that any subsequent legislation which in effect amended an entrenched
piece of legislation was valid. Full entrenchment is not
however unprecedented in the common law system generally.
(b) Semi entrenchment: this provides that no future law may amend
the entrenched legislation unless it expressly states that it
is intended to achieve this. If it does not so state, but
conflicts with the entrenched legislation, the latter will
override it. This is the method Canada has used in
entrenching its Bill of Rights. There is a (sort of)
precedent for this in the UK ie the European Communities Act.
3. The provision in the Hong Kong draft Bill of Rights for
certification by the Attorney General that future legislation does
NESAEB
CONFIDENTIAL