CONFIDENTIAL
HKC 241 S
RL
16 JAN 1991
BY
RY
Ms
Major, HKD
ھے
toon Taken
From:
Term.
pa
Paul Fifoot
Legal Advisers
Date:
10 January 1991
CC Ms Barrett
"1
Bill of Rights: Policy"
HONG KONG TELNO 66: BILL OF RIGHTS
1.
The formula proposed in paragraph 2(1) and (3) of TUR reflects the difference between the implementation of the international Covenant and the incorporation of the international Covenant. Such a distinction is valid: in the United Kingdom we assert that we implement fully the European Convention on Human Rights but we do not incorporate that Convention into our law. The present draft of the Hong Kong Bill, although it refers to implementing further the Covenant, does in fact incorporate the Covenant into the law of Hong Kong. This change of wording, therefore, makes no difference to the Bill itself and is therefore unobjectionable.
2.
The addition of the words "by means of a single legislative measure" adds nothing to the normative effect of the Bill. That does not matter so far as the long title is concerned where a purely descriptive provision (and the words are descriptive) is acceptable. However, it is also intended to repeat the words in the interpretation clause and there the inclusion of what are essentially otiose words may puzzle the courts in exercising their function of attempting to give meaning to every provision in an enactment. The courts may nevertheless be prepared to treat the words in Clause 2 (3) as purely descriptive and, therefore, although I think there would be a technical advantage in their not being included in Clause 2 (3) and we should draw the attention of Hong Kong to the general undesirability of otiose words in the body of an enactment, I do not think this is a question which we need urge HKG to remove them from that clause if HKG think they will advance the possibility of the Chinese being more accommodating about the Bill of Rights.
3. However, I wonder whether the formulae suggested in paragraph 2 of TUR and the removal of the preamble does meet what is said to be the Chinese concerns. If it is the Chinese position that the Covenant is taken as having been fully implemented and they oppose any suggestion to the
7PFAAJ
CONFIDENTIAL
2