this could be regarded as a purpose connected to the implementation of the International Covenant on Civil and Political Rights and thus as being within the powers conferred by the 1989 Order. In any event, we are not sure that there are any legal difficulties of the kind you suggest in paragraph 3 of your letter. Doesn't the 'necessary or expedient' qualification in Section 3 of the Schedule to the Hong Kong Act 1985 apply to the power to make Orders in Council? These words are not repeated in the 1989 Order and therefore do not qualify the exercise of powers conferred by that Order. We do, however, appreciate that amendment of UK legislation for this purpose may in any event not be politically desirable.
8.
In the light of your letter, we have given some further thought to devising an alternative method of achieving the desired result and now put forward the following for your
consideration.
9. You would retain your new Clause 3A but delete Clause 4 altogether. We would amend the Letters Patent by adding a new article identical to (or based very closely on) Article 39 of the Draft Basic Law. The Bill of Rights would then contain no safeguard against inconsistent future legislation, and so would face no legal pitfalls. The amendment to the LP would provide full entrenchment for the Bill of Rights; it would of course fall away in 1997, but be replaced by Article 39 itself. It cannot be guaranteed that the SAR courts would necessarily apply the principles of ultra vires to Article 39, but this would be reasonably likely, especially if a body of case law relating to the "Article 39" in the LP had built up before 1997. This method, in addition to avoiding any legal objections, ought also to be politically defensible. While providing full constitutional guarantees in Hong kong at least up to 1997, it could also be presented as a convergence measure passed to implement part of the BL, to which the Chinese could hardly object.
10.
I look forward with interest to your reactions to the above. I have, incidentally, discussed the contents of this letter with Sir Arthur Watts, who is in general agreement.
Jill Barrett
Assistant Legal Adviser