TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 7

during

period after commencement of their Bill of Rights of Rights which pre-existing legislation is declared 'frozen', and not.. liable to challenge under the Bill. This period is used to clear up, as far as possible, inconsistencies in the legislation. At the end of the 'freeze' period the legislation becomes open to challenge.

Alternatives to this approach are

to defer the commencement of the Bill;

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(a)

(b)

to

(c)

freeze

indefinitely; or

pre-existing

legislation

to allow pre-existing legislation to be challenged from the start.

Option (a) above has no advantages over the temporary freeze' option, and would delay the Bill having any effect. Option (b) would allow the Government to preserve legislation incompatible with the Bill which it would nevertheless prefer to keep. However, in time the problem of inconsistency between new and old legislation would become acute, and the old legislation would simply become discredited. Option (c) would mean that, directly upon enactment of the Bill, the court s could find themselves facing challenges to a very large amount of legislation all at once. This would serious consequences for judicial resources. It would undermine public confidence in Hong Kong laws, in particular while cases were still unsettled.

23

have

also

For these reasons we would recommend a freeze period during which amendment of legislation enacted before the Bill of Rights could be considered. We would suggest a

suggest a two year period.

a

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Whichever option is chosen, it should be noted that the UK Government and Hong Kong Government have in public maintained that the human rights principles contained in the Covenant s have been given effect in Hong Kong by combination of common law, statutory law and administrative rules. Any indication that there is some discrepancy between the Bill (and hence

hence the ICCPR) and existing legislation whether it be by admission of the necessity of a freeze or by the success of challenges to legislation may be used to charge the Government with inconsistency.

Enforcement

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A

Decisions must also be taken concerning the enforcement of the Bill of Rights, in particular where. an action involving the Bill should be tried, who should be able to bring such an action, and against whom.

CONEIDENTIAL