CONFIDENTIAL
V. URGENT
67
Foreign and Commonwealth Office
London SW1A 2AH
Telephone 01-
Jeremy Mathews Esq
Attorney General Hong Kong
HKD241
14 MAR 1990
Dan
**SK OFFI
PA
REGISTRY Action Taken
Your reference
Our reference
Date
Pet Mt 12/3
pa Am
1 March 1990
Lee (62)
25
30
(36)
BILL OF RIGHTS
1.
I have spent some time this afternoon with Paul Fifoot and Jill Barrett (Assistant Legal Adviser) discussing in particular Fifoot's proposed clause 4 to our Bill (see FCO telnos 171 and 205 (para 5)). Hong Kong rejected his proposal: one of the main fears, if I recall correctly, was that his proposal would constitute a fetter on the powers and procedures of the legislature (see para 5, my letter to Fifoot of 9 February 1990).
2.
Q
I
Jill Barrett has written to me (letter attached). have had scant time to consider her points or those made in discussion with me, but I would ask you to draw them urgently to attention of Fred Burrows and Phil Dykes, and also to attention of Telford. I am meeting Pam Major of Hong Kong desk tomorrow morning (2 March) and would be grateful for any reaction by team by then.
Manner and Form
3.
My preliminary reaction is that the Fifoot formula does not offend the CLVA, and I find paragraph 5 of Barrett's letter persuasive. I think we are in danger of using the phrase "manner and form" inappropriately. The requirement to pass legislation in a particular manner and form arises only by way of proviso in respect of certain legislation passed by representative legislatures. The real point is whether any interpretation or construction formula in the B.O.R. constitutes a law respecting the constitution, powers and procedures of the legislature. Fifoot's point, if I represent it correctly, is that his formula does not alter any power or procedure. LegCo is perfectly free to include or not to include an express derogation clause in future legislation. No special procedure (e.g. voting majority) is required to enact inconsistent legislation. Nor does the formula affect powers so that, for example, no referendum is required to enable LegCo to pass a contrary law. In using an express derogation clause in the future, LegCo merely
/recognises
CONFIDENTIAL