در
CONFIDENTIAL
NB:
recognises a rule of law or of construction, and therefore uses an appropriate formula to give expression to its intention.
4.
Dykes will wish to consider how this line of argument sits with professor Hogg's "magic formula" principle (the Constitutional Law of Canada pp 639-645). My gut view is that Fifoot is correct in this assertion that his formula creates no manner and form, or CLVA, problem. I note, incidentally, that we rather thought as much in relation to a similar formula we had in mind, and which we labelled the Construction Approach (see para 6 XCo Memo XCC (90)9 of 23 Habyart) January) although the penultimate sentence of that paragraph qualified that view. I recognise that political considerations might still hold sway against adopting the Fifoot approach.
Entrenchment/Letters Patent
5.
See paragraph 9 of Barrett's letter: I think this well worth considering. It is a measure which could be sold as an "early convergence" measure, and would have the advantage that judges could develop an approach to the mirror image of Article 39 of the Basic Law, before 1997. We might have to consider how such a device would sit with the Fifoot interpretation provision and more particularly the express derogation clause (if the Fifoot approach were otherwise acceptable). Furthermore, Fifoot wonders whether, illogical though this may be, the Chinese would, in consequence, link the bill of Rights to the Letters Patent, and, using Article 159 of the BL, strike down the Bill when the Letters Patent lapse in 1997.
Article 22 Bill of Rights
and the Basic Law:
6. My attention has been drawn to recent changes in the Basic Law (e.g. Article 66) relating to citizens without right of abode elsewhere, and in the light thereof to the scope of Article 22 of the draft Bill of Rights. Compare also Article 22 of the Bill of Rights with ICCPR Article 25. Our lawyers, and the policy branch, will wish to consider this carefully.
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