6
CONFIDENTIAL
effects but as regards 9 and 11 we do not say what we mean, which is that "in the event of conflict between those restrictions or that legislation and the Bill of Rights, the former will prevail". Can we rely upon the courts to draw that conclusion?
Clauses 14 (2) and (3): Again, in commenting on the "Freeze period" in our telno 1246 we drew attention to the point that the present draft provided no rule for whether an existing law or the Bill of Rights would prevail. The intention no doubt is the former, but it is not a compelling one. The new draft also raises a very puzzling issue. Paragraph 15 of the ExCo Memorandum says "the selective freeze should apply to all provisions referred to in the Schedule to the Ordinance. The appropriate reference should be added during the year following enactment of the Ordinance by a resolution of the Legislative Council". This seems to imply that, when the Ordinance is enacted, there will be an empty Schedule. That really would be nonsense. If it is intended that the contents of a "schedule" shall only be prescibed at a later date, the drafting should be to the effect that "This Ordinance does not affect any provision to which this subsection applies or any act done under such provision, including an act done in the exercise of a discretion. This subsection applies to any provision in legislation enacted or made before the commencement of this Ordinance specified by the Legislative Council by resolution made pursuant to this subsection."
Should the Bill be proceeded with at present?
10.
There are a number of ways in which this Bill is defective. In particular, a number of provisions are uncertain, likely to offend Chinese sensibilities (Clause 2(3), Clause 5, and the NT issue) which make it possible that it will not survive 1997, or obscure (Clause 6(1)). One can only hope that when the Bill is before ExCo something can be done to cure some of these defects so that it will be easier to live with the measure the object of which is as much political as legal. In addition to drawing the matters referred to in this minute to the attention of the HKG, we should urge on HKG, at least, the point made in paragraph 7 (which is not a textual point) and (a) the points made in paragraph 8 on Clauses 2(3), 6, 14(2) and (3),
and (b) the points made in paragraph 4(A), (C), (D), (J) of our telno 1246. However, one point, standing alone, let alone in combination with the other defects, which, in my view, will make it difficult to defend this Bill if it is proceeded with (and which argues against proceeding with
3PFAAC
CONFIDENTIAL