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(b) It would be impossible for anyone to assess the
compatibility of draft legislation with the Bill of Rights in the abstract, since inconsistencies might only become apparent
in the light of concrete cases. If it later became clear, in
the context of a case, that a piece of legislation conflicted
with the Bill (but the Attorney General had certified
otherwise), valid legislation conflicting with the Bill would
have been passed, contrary to LegCo's intention.
4.
(c) In the case of government legislation it is hardly likely
that a Bill would be presented to LegCo at all if the Attorney
General considered that it was incompatible with the Bill of
Rights, while in the case of non government Bills it is doubt ful
whether the view of the Attorney General would be seen by the
public to be impartial.
In any case the need for this certification procedure falls away
in the light of the decision to entrench the Bill of Rights by
amending the Letters Patent to include a new article based on
Article 39 of the Basic Law. This will provide full constitutional
guarantees in Hong Kong at least up to 1997 but removes the need for
any entrenchment provision in the Bill of Rights itself. LegCo
will simply no longer have the legal power to pass legislation
inconsistent with the Bill of Rights.
5.
The amendment to the Letters Patent could be presented to the
Chinese as a convergence measure, passed to implement part of the
Basic Law. Securing entrenchment by means of the Letters Patent may
arouse Chinese suspicions and they may well insist on being
consulted. But provided we adhere closely to the wording of Article
39, it should make it more difficult for the Chinese to object.
6.
The amendment to the Letters Patent would be implemented by
means of an Order in Council, which might take a couple of months.
For presentational reasons there would be obvious advantages in
ensuring that the amendment came into force at about the same time that the Bill of Rights was enacted in Hong Kong (now expected to be
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