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legislation as possible. These considerations are partly the reasons for my suggested amendments to the Articles set out in clause 8 of the Bill; they are also relevant to Part III of the Bill. Bills have exceptions and provisos; they do not have reservations. The references to reservations should be dropped. Further it is more sensible from the point of view of the reader (and the lawyer) if the exceptions or provisos are more directly connected to the provision they qualify rather than set out separately. It would therefore be prudent to drop Part III (and clause 2(2)) and insert the relevant provisions of Part III in the appropriate places in Part II. I have done this in green ink in the attached text. Three points should be noted:-
(i)
(ii)
(iii)
Article 17 (1) should be deleted. To include it defeats the purpose of the reservation. The same would not necessarily be true of Article 17 (2) if the original reservation was postulated upon the enactment of the UK Race Relations Act 1976 and there is no comparable legislation in Hong Kong. There is therefore an argument for retaining it. But if it is retained, it will be without effective teeth (ie the courts could only issue declarations or injunctions) if there were no further legislation on the point.
There is a question whether the reservations set out in clauses 9 and 10 apply to Hong Kong. The United Kingdom's reservation did not reserve these rights expressly for its dependencies and the fact that it did expressly reserve other provisions raised an expressio unius argument. Hong Kong should be asked its views and, if necessary, we can make a further search of the files.
If the reservation in clause 10 does apply, it should be repositioned in Article 8. It is more difficult to decide where to reposition the reservation in clause
Article 5 or Article 6 are possibilities.
In any event, an attempt should be made to limit its effects: see my text.
The Bill of Rights Bill (other than Parts II and III)
5.
Preamble: Can one say that the Covenant applies in Hong Kong without referring to the reservations? I would suggest a shorter preamble as follows:-
further
"Whereas it is desirable to make provision for the [continuation of the application of the provisions of the
International Covenant on Civil and Political Rights in Hong Kong".
not
ww
argument
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