TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 151

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(b) It would be impossible for anyone to assess the

compatibility of draft legislation with the Bill of Rights in the abstract, since inconsistencies might only become apparent

in the light of concrete cases. If it later became clear, in

the context of a case, that a piece of legislation conflicted

with the Bill (but the Attorney General had certified

otherwise), valid legislation conflicting with the Bill would

have been passed, contrary to LegCo's intention.

4.

(c) In the case of government legislation it is hardly likely

that a Bill would be presented to LegCo at all if the Attorney

General considered that it was incompatible with the Bill of

Rights, while in the case of non government Bills it is doubt ful

whether the view of the Attorney General would be seen by the

public to be impartial.

In any case the need for this certification procedure falls away

in the light of the decision to entrench the Bill of Rights by

amending the Letters Patent to include a new article based on

Article 39 of the Basic Law. This will provide full constitutional

guarantees in Hong Kong at least up to 1997 but removes the need for

any entrenchment provision in the Bill of Rights itself. LegCo

will simply no longer have the legal power to pass legislation

inconsistent with the Bill of Rights.

5.

The amendment to the Letters Patent could be presented to the

Chinese as a convergence measure, passed to implement part of the

Basic Law. Securing entrenchment by means of the Letters Patent may

arouse Chinese suspicions and they may well insist on being

consulted. But provided we adhere closely to the wording of Article

39, it should make it more difficult for the Chinese to object.

6.

The amendment to the Letters Patent would be implemented by

means of an Order in Council, which might take a couple of months.

For presentational reasons there would be obvious advantages in

ensuring that the amendment came into force at about the same time that the Bill of Rights was enacted in Hong Kong (now expected to be

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