}
(d)
that delay is therefore an abuse of power;
(e) the validity of Clauses 7 and 14 is therefore
questionable?
6.
That is not an unattractive argument but I do not think it holds up as a matter of law since the amending Letters Patent themselves will create the possibility of delay and, notwithstanding the assumed intent of the second sentence, it can only have effect in law once the amendment is in operation. It could, however, provide a political debating point and if we wished to avoid that possibility, it would be easy to provide an alternative to the programme suggested in telno 3066. One possibility would be to put a date for the coming into operation of the amending Letters Patent themselves which was sufficiently in advance of the intended enactment of the Bill of Rights.
7.
With regard to Clause 4 of the Bill (paragraph 2 (B) of TUR), I doubt whether it has such an effect that it is worth seeking to maintain it if its deletion would deliver Chinese agreement. The Clause is an attempt to project into the future an element of what is already a rule of construction. The principal rule of construction is that where there is an essential inconsistency between an earlier and a later law, the later law prevails with the consequence that the earlier law is pro tanto repealed. But where this situation may be alleged to arise the courts do attempt to read the two in a way which does not involve inconsistency. "It is only if the Acts are so plainly repugnant to each other that a repeal will be implied" (see A L Smith, J in Kutner v. Phillips
[1891] 2QB267 at 272).
8.
If the possibility of repugnancy occurred in Hong Kong after the enactment of a Bill of Rights containing Clause 4 either in the text in which it appears in the Blue Bill or in the text proposed in TUR, the court would have to look at two issues, namely:-
(a) is the later Ordinance repugnant in any respect to the
Bill of Rights; if so, it will prevail and there will be an implied repeal, pro tanto, of the Bill of Rights; unless
(b)
J
the later Ordinance is inconsistent with the second sentence of the amending Letters Patent (in the ICCPR), in which case the later Ordinance would be invalid, pro tanto, to the extent of its inconsistency with the ICCPR.
6PFAAQ