In view of these arguments, we would recommend the omission of the rights contained in the ICESCR from a Bill, but such rights should be given effect by other means if not already effectively secured.
Entrenchment and Supremacy
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'Entrenchment' refers in the present context to any arrangement that imposes a legal constraint on the ability of the legislature to make law that conflicts with existing legislation. As the law stands, a later Ordinance which is inconsistent with an earlier Ordinance repeals the earlier one to the extent of the inconsistency, although courts will if possible read the two Ordinances together to avoid inconsistency.
A Bill of Right s would, therefore, automatically have supremacy over pre-existing legislation incompatible with it. By the same token, however, subsequent legislation incompatible with the Bill would normally repeal the relevant provisions of the Bill. If the Bill is to be protected, therefore, some entrenching mechanism must be found to prevent or hinder the passage of subsequent legislation which is incompatible with its provisions.
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There are a number of possible entrenching mechanisms. Some can be inserted into Hong Kong legislation (for example a special Legislative Council voting requirement for passage of incompatible legislation). Entrenchment can also be achieved through legislation of the Sovereign power. For example before
before 1997 the Royal Instructions could be amended So that the Governor would not assent to any Ordinance incompatible with the Bill of Rights. After 1997, the Basic Law could provide a degree of entrenchment (Indeed, Chapter III of the present draft sets out certain rights. Any legislation which contravenes these rights could be challenged in court under Article 11 as drafted). Details of the possible methods of entrenchment will be put to members at a later stage for their advice.
For now, we ask members to accept in principle that the Bill should be entrenched.
Commencement of the Bill
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or
The Bill, once in force, will either repeal render inoperative all pre-existing legislation found to be incompatible with it. Following the Canadian experience, we can expect a large amount of legislation to be challenged, in any number of contexts. A review is now under way of Hong Kong legislation which is or may be incompatible with the Bill. Some of the more obvious problems will be dealt with before the Bill is introduced. But given the tight time schedule, it is likely that much of the doubtful legislation will still be in place when the Bill is introduced. Faced with this situation many countries have chosen to allow a
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