TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 37

律政司

香港金鐘道66號

金鍊道政府合署高座4樓

#JA : 81710 HKAGC HX

TIRMA : 152-5-8652720

CONFIDENTIAL

AGC ADV/638 00C VII HKD241

本署檔號 Our Ref:

來函擋號 Your Ref:

#4 Tel. No.:

867 2003

Mr. P. Fifoot,

36

ATTORNEY GENERAL'S CHAMBERS

4/F., HIGH BLOCK

QUEENSWAY GOVERNMENT OFFICES

RECEIVE IN REGISTRY

2 0 FEB 1990

DESK OFF)

Foreign and Commonwealth office,

London.

66 QUEENSWAY, HONG KONG

ISTRY

Taken

Telex: 81710 HKAGC HX

Fax: 852-5-8652720.

8177720

9 February 1990

Ror Bill St Rights

for 2012

30

تین

Paul

Dear

Bill of Rights: Manner and Form

Lee (51

fu13/3

You will know that there is a breathing space in relation to consideration of the proposed Bill, and I would like to take the opportunity of canvassing with you the difference of approach between us in relation to the permissible width of an interpretation clause. I refer in particular to FCO Telnos 205 and 219. As I point out in paragraph 6 below, there is a political difficulty with the suggested approach, but I would welcome your response to our analysis of the position in law.

you

to

2.

In essence, we do not appear to be ad idem with

on the ambit of the manner and form concept. It seems to us that section 5 of the Colonial Laws Validity Act (CLVA) permits a representative legislature

make laws respecting its constitution, powers and procedures so long as they come within the proviso of having been passed in such manner and form as may be prescribed by an Act of Parliament, Letters Patent, Order in Council or a colonial law. CLVA does not confer like powers on a non-representative legislature (Hong Kong), although such a legislature might enact laws respecting its constitution, powers and procedures if empowered by some other instrument to do so. (see Chenard v. Arissol (1949) AC 127 at 132-133).

3.

We have considered whether there are any existing instruments which we could use to circumvent the prohibition implied

section 5 CLVA that the Legislative Council cannot enact laws relating to its constitution, powers and procedures. We have considered the Hong Kong (Legislative Powers} Order 1989 which gives

us the power to amend or repeal UK legislation 'to give effect to an international agreement which applies to Ilong Kong and for connected purposes'.

This would mean amending section 5 CLVA to put us in the same position as a representative legislature in order

CONFIDENTIAL

to enact an