TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 10

$3

or paws,

расты

CONFIDENTIAL

2

entrenched ICCPR based Bill of Rights. The weakness of this approach is that it can be argued that such a step is neither 'necessary or expedient' within the meaning of schedule 3 to the Hong Kong Act, 1985. would be interested to have your views on his matter

anyway.

4.

We

From a political point of view, we would prefer not to

require the

the creation of a new power (e.g. Order

in Council; amendment to The Letters Patent) to enable the legislature to relating

pass laws its constitution, powers and procedures. This means that we seek a formula whigh does not involve offending against the implied prohibition in

to

section 5 CLVA.

5.

we in

a

We believe that express derogation clauses affect the powers and procedures of the legislature because their effect is that a future legislature is told that if it wishes to derogate it may only do so by following certain procedure, namely passing a bill in a special form. By the same token, its power is affected to that extent. (In coming to this view have noted Australian authorities on the CLVA and, particular, the observations of Rich J in AG(NSW) Trethowan (1931) 44 CLR 394 at 419 which are to the point: "In my opinion the proviso to section 5 {CLVA} relates to the entire process of turning a proposed law to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making. We have also noted the commentary in Halsbury (4th "Commonwealth and Dependencies" at

V.

edn.), Volume 6 paragraph 1074.)

6.

There is dimension, namely,

in any

event a political that it is felt that your suggested clause does not address the problem which such a clause would be likely to create with the Chinese. They could well take the view that the object was to fetter the SAR legislature by requiring it to proceed in a particular way if it wished to

override the Bill of Rights or any part of it. The political judgement is that any attempt to impose formal constraints on the SAR legislature could put the Bill in jeopardy.

Even

Bil1 in

7.

the

law

is open

if the clause you suggest did not put jeopardy, we think its effectiveness in to question. The SAR legislature could