TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 9

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Once the basic form of the Bill has been decided a number of detailed and important questions will need to be tackled. The se will include the form of remedies which should be available for successful plaintiffs. The position of the Crown as a defendant or respondent in an action involving an allegation of a violation of the Bill of Right s will have to be considered very carefully in this context because the Crown has hitherto enjoyed special benefits and privileges in litigation the continued existence of which may be difficult to justify in the context of securing the effective protection of human rights. Members will be consulted on this and other questions in due course.

The China Dimension

in

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The passage of a Bill of Rights before 1997 is of course a matter for the Hong Kong Government. However, for the Bill to be of real use, it must be in a form which can suvive the transition. In this respect assuming that there are no substantial changes to the draft Basic Law, it will be necessary for the Bill to be consistent with the Basic Law so that it can, under Article 8 of the draft Basic Law, continue to be in force after 1997. So far the Chinese have given little indication that they would find the enacting of a Bill of Right s in Hong Kong before 1997 unacceptable principle. There have, however, been signs that the Bill is the subject of considerable interest to the Chinese and that they will be studying its content s carefully. If the contents of the

the Bill of Rights are consistent with the provisions of the Basic Law, it will be difficult for the Chinese to find an excuse to query the Bill pre-1997, and the Bill will be maintained after 1997 by virtue of Article 8 of the draft Basic Law. But it may nevertheless be prudent to raise the question of the Bill with the Chinese in general terms at JLG XIII.

LEGISLATIVE TIMETABLE

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We would envisage the following timetable for work on the Bill :

(a)

Issue of Drafting

Instructions

(b)

Draft Bill for

public consultation

(c)

Consultation period

(d)

Amendment of Bill

early-mid October 1989

December 1989

January-February 1990

March 1990

CONFIDENTIAL