26.
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This problem could be overcome now by a U.K. Order in
Council pursuant to section 3 of the Schedule to the
Hong Kong Act, 1985 either amending the Colonial Laws
Validity Act, 1865 or authorising the Hong Kong legislature
to do so. LegCo could then adopt a manner and form
requirement for future amendment of the Bill of Rights along the lines suggested above and that requirement
would be binding until 1997.
13.
A word is in order as to the legal effectiveness
of manner and form requirements. Because of the British
constitutional doctrine that no Parliament can bind
its successors, it was once thought that British-style
legislatures could not impose limitations on their own
future law-making. This conclusion has been seriously challenged by writers in the last three decades, particularly
in respect of manner and form requirements. That is, it has been argued that a legislature can prescribe procedures by which it is to make laws, and until those procedures are changed it and its successors are bound by those procedures. This view has in effect been accepted
by the House of Lords in a recent case; Factortame Ltd.
et al v. Secretary of State for Transport [1989] 2 All
E.R. 692 at 700-01. It was there recognised that because
Parliament had by section 2 of the European Communities
Act, 1972, ordered that rights under those treaties were to be given legal effect, a 1988 Act would have
to be read as subject to those rights. In my view Parliament
had, in the 1972 Act, in effect adopted a manner and
form requirement that no present or future U.K. law
could be given the effect of denying treaty rights,
at least as long as those treaty rights were not changed
by the procedures for treaty amendments, unless Parliament repealed section 2 of the 1972 Act. It is that requirement whose validity the House of Lords has in effect recognised.
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