TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 38

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entrenched ICCPR based Bill of Rights. The weakness of this approach is that it can be argued that such a step is neither `necessary or expedient within the meaning

schedule 3 to the Hong Kong Act 1985. would be interested to have your views on this matter anyway.

4.

Of

We

laws

From a political point of view, we would prefer not to require the creation of a new power (e.g. Order in Council; amendment to the Letters Patent) to enable the legislature to relating

pass its constitution, powers and procedures. This means that we seek a formula which does not involve offending against the implied prohibition in section S CLVA.

5.

we

in

We believe that express derogation clauses affect the powers and procedures of the legislature because their effect is that a future legislature is told that if it wishes to derogate it may only do so by following a certain procedure, namely passing a bill in a special form. By the same token, its power is affected to that extent. (In coming to this view have noted Australian authorities on the CLVA and, particular, the observations of Rich J in AG(NSW) Trethowan (1931) 44 CLR 394 at 419 which are to the point: "In my opinion the proviso to section 5 {CLVA} relates to the entire process of turning a proposed law to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making. We have also noted the commentary in Halsbury (4th edn.), Volume 6 "Commonwealth and Dependencies" at paragraph 1074.)

V.

in

any

event a

#

There is dimension,

political namely, that it is felt that your suggested clause does not address the problem which such a clause would be likely to create with the Chinese. They could well take the view that the object was to fetter the SAR legislature by requiring it to proceed in a particular way if it wished to override the Bill of Rights or any part of it. The is that any attempt to impose formal constraints on the SAR legislature could put the Bill in jeopardy.

political judgement

1.

the

law

Even if the clause you suggest did not put Bill in jeopardy, we think its effectiveness in to question. The SAR legislature could

is open

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