TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 52

CONFIDENTIAL

HKD241/1

RECEIVED IN REGISTRY

20 FEB 1990

27

022614

MDHOAN 1275

CONFIDENTIAL

FM FCO

TO DESKBY 17010OZ HONG KONG

TELNO 170

OF 16190OZ JANUARY 90

DESK OFFICE --

REGISTRY

INDEX

PA

Action Taken

INFO IMMEDIATE PEKING, UKREP JLG HONG KONG

26,

MY TELNO 151: BILL OF RIGHTS

TOP COPY Q DIST ?

1. WE NOTE EXCO'S DECISION THAT FURTHER CONSIDERATION SHOULD BE GIVEN TO METHODS OF ENTRENCHING THE BILL OF RIGHTS (YOUR TELNO 109). HOWEVER, WE ARE ALSO AWARE THAT COMPLETE ENTRENCHMENT OF A KIND WHICH REQUIRED SPECIAL LEGISLATIVE PROCEDURES TO REPEAL THE BILL OF RIGHTS OR OVER-RIDE ONE OF ITS PROVISIONS MIGHT BE CONSIDERED BY THE CHINESE TO BE INCONSISTENT WITH THE DRAFT BASIC LAW (IN PARTICULAR ARTICLE 74).

2. WE THEREFORE SUGGEST FOR YOUR CONSIDERATION A SOLUTION ALONG THE FOLLOWING LINES WHICH WE HOPE MIGHT MEET BOTH SETS OF

CONCERNS.

THE DIFFERENCE

3. CLAUSE 3 OF THE DRAFT BILL WOULD REMAIN AS DRAFTED. CLAUSE 4 WOULD BE REPLACED BY A PROVISION THAT ALL FUTURE LEGISLATION IS TO BE CONSTRUED AND HAVE EFFECT SUBJECT TO THE BILL OF RIGHTS ORDINANCE UNLESS IT CONTAINS AN EXPRESS OVER-RIDE CLAUSE. THIS WOULD BE SIMILAR TO THE EXISTING CLAUSE 4 IN THAT IT COULD NOT PREVENT LEGCO FROM ENACTING INCONSISTENT LEGISLATION, OR EVEN REPEALING THE BILL OF RIGHTS IN ITS ENTIRETY, BUT IT WOULD AVOID THE POSSIBILITY OF THIS BEING DONE INADVERTENTLY. IS THAT THE DECLARATION HAS TO BE CONTAINED IN THE ITSELF, RATHER THAN MADE BY THE ATTORNEY-GENERAL. ADVANTAGE THAT A DECLARATION WOULD NOT BE REQUIRED TIME NEW LEGISLATION IS PRESENTED, BUT ONLY ON THE (NO DOUBT RARE) OCCASIONS WHEN IT IS INTENDED TO OVER-RIDE THE BILL OF RIGHTS. IF NO SUCH DECLARATION IS INCLUDED, ANY INCONSISTENCY WOULD BE PRESUMED INADVERTENT AND THE COURTS WOULD INTERPRET THE NEW LEGISLATION SUBJECT TO THE BILL OF RIGHTS.

LEGISLATION

IT CARRIES THE EACH AND EVERY

4. A DRAFT OF THE NEW CLAUSE 4 IS SET OUT IN MIFT. IT DRAWS ON SECTION 2(4) OF THE EUROPEAN COMMUNITIES ACT (ECA) 1972 AND SECTION 33 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS 1982. 5. FROM THE POINT OF VIEW CRITICISM IN HONG KONG THE CHANGE FROM THE ATTORNEY-GENERAL'S CERTIFICATE PROCEDURE TO THE MECHANISM OF THE OVER-RIDE CLAUSE BASED ON THE CANADIAN CHARTER IS A QUOTE BEEFING UP UNQUOTE OF THE BILL OF RIGHTS. IT IS AN IMPROVEMENT IN THAT IT PUTS THE SAFEGUARD IN A LEGAL RATHER THAN PURELY

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CONFIDENTIAL