TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 56

HKD241

RECEIVED IN REGISTRY

21 FEB 1990

DESK OFFICE

INDEX

Mr McLaren

'se

CONFIDENTIAL

From:

P A Major

Date: 12 January 1990

A R Paul

CC:

で

াপ

HONG KONG BILL OF RIGHTS

24

1. We discussed Hong Kong telno 138 recording ExCo's decision on

the Bill of Rights. I have sent a telegram to Hong Kong asking for

a sight in good time of any revised draft bills and draft ExCo

memorandum and offering services of our Legal Advisers concerning

options for entrenchment in a common law jurisdiction.-

You may be interested in the following summary of the legal

position concerning entrenchment. There are two types:

2.

(a)

Full entrenchment: this prevents a future legislature

amending or repealing legislation at all or requires special

procedures to do so (eg two-thirds majority vote, two passes

through legislature, a referendum etc). Full entrenchment is

unprecedented in the UK. There is academic debate as to

whether it could be done. One strand of opinion is that

attempts would fail because courts would decide that any subsequent legislation which in effect amended an entrenched

piece of legislation was valid. Full entrenchment is not

however unprecedented in the common law system generally.

(b) Semi entrenchment: this provides that no future law may amend

the entrenched legislation unless it expressly states that it

is intended to achieve this. If it does not so state, but

conflicts with the entrenched legislation, the latter will

override it. This is the method Canada has used in

entrenching its Bill of Rights. There is a (sort of)

precedent for this in the UK ie the European Communities Act.

3. The provision in the Hong Kong draft Bill of Rights for

certification by the Attorney General that future legislation does

NESAEB

CONFIDENTIAL